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' '///f/'/ej r^^^ti/n^oi .S¥e/a ?//.). 






Jdn Mi^rruf //^^- 

HI STORI A 

PLACITORUM CORONA. 



THE 



HISTORY 



OF THE 



53leas of tlje Ctolijit, 

By Sir MATTHEW HALE Knt. 
fometime Lord Chief Jufiice of the 
Court of King's Bench. 



Now firfl; publiflied from his Lordftiip's Original Manu- 
fcript, and the feveral References to the Records examin- 
ed by the Originals, with large Notes. 

By S L L M E M L T N of Lincoln s-Inn Efq; 



To which is added 

A Table of the Principal Matters. 



3In ^Ciajo HolttmciSf. 



VOL. I. 



In the S A V O Y; ^ ^^f/ 

Printed by E. and R. Nutt, and R. Gosling, (Afligns of ""^ 
EdiJ^ard Sayer, Efq;) for jf. <55pIC!j over-againft: Qrays-Inn in 
Holborji^ 'ST* 2H00t)U)arlI at the ""Half-Moon between the Two 
7'emple-Gates in Fleet-Jlreet, and C* DaiJlg in Tater-nofter-rcjo. 
-h MDCC XXXVI. 



Extrad from the Journal of the 
Houfe of Commons. 

Luriiii 19*^ die Novemh. 1680. 

Orderd, That the Executors of Sir Matthen> Hale, late 
Lord Chief Juftice of the court of King's Bench, be defi- 
red to print the MSS. relating to the Crown-law, and 
that a committee be appointed to take care in the printing 
thereof, and it is referred to 

Sir Will. Jones, Mr. Sacheverel, 

Serj. Maynard, Mr. Geo. Pelham, 

Sir Fra. Winnington, Mr. Paul Foley. 



To the Right Honourable 

Sir JOSEPH JEKYLL Knt. 

MASTER of the ROLLS, 

And One of his Majefly's mod 
Honourable Privy-Council. 

SIR, 

AS it is to you that the public are indebted for 
refcuing this valuable work from the obfcuricy 
wherein it had long lain, the preparing of 
which for the prefs you were pleafed to commit to my 
care, I thought it became me to infcribe your name 
on that, to which you are fo juftly intitled: Nor know 
1 any to whom it could with greater propriety be ad- 
dreit, than to one, who bears (o near a refemblance 
to the author in thofe great and good qualities, for 
which he was (o defervedly efteemed. 

An unblemifhed integrity and upright condud: in 
every character of life, whether as a private perfon, a 
fenator, or a judge; A generous franknefs and open fin- 
cerity in converfation ; An unalterable adherence in all 
llations to the principles of civil and religious liber- 
ty, accompanied with a ferious regard to true piety 
and virtue; A firm attachment to our conftitution in 
times of the greateft difficulty and danger; A difince- 
rerted zeal for the welfare of mankind, manifefted by 

unwearied 



The DEDICATION. 



unwearied labours for the public good, uninfluenced 
by the fpirit of a party or any linilter motive, are ex- 
cellencies, which no lels eminently diilinguiih you 
than they did the author of this treatife; and as they 
procured him fuch a lading veneration and eftfeem, 
io while the fame caules are productive ol the fame 
effects, they will in like manner tranfmit your memory 
to after-times with honour and renown. 

To enlarge upon this fubjed, how agreable foever 
to others, would I know be olfenfive to you, who are 
more regardful o^ the approbation of your own 
mind, than any outward applaufes, and while you are 
intent upon really beins and doing good, are no lefs 
ftudious to avoid all offentatious ihews of it. I fhall 
therefore only add, that I am, 

SIR, 

With great refpet^y 

Tour Honours 
Mofi obedient 
Humhk Jervanty 



Sollom Emlya 



THE 



P R E FACE. 



THE following treatife being the genuine off- 
(pring of that truly learned and worthy judge 
Sir Matthew Hale (a) ftands in need ot no o- 
ther recommendation, than what that great and good 
name will always carry along with it. 

Whoever is in the lead acquainted with the exten- 
five learning, the fohd judgment, the indefatigable 
labours, and above all the unfhaken integrity of the 
author, cannot but highly efteem whatever comes from 
fo valuable an hand. 

Being brought up to the profelTion of the law he 
foon grew eminent in it, difcharging his duty therein 
with great courage and faithfulneis and tho he lived 
in critical times, when difputes ran (b high between 
king and parliament, as at laft broke out into a civil 
war, yet he engaged in no party, but carried himfelf 
with luch moderation and evennefs of temper, as 
made him loved and courted by all. 



It was this great and univerfal efteem he was then 
in, that made Cromzvel fo defirous to have him for 
one of his judges, which offer he would willingly have 
declined. Being preft by Cromzvel to give his reafon 

[A] he 

(a) He was born at AUcrky In Gloii- Lord Chief Baron of the Court of Fx- 

cejlcrjhire, Nov. i^ 1609. chequer, Nov.j, \66n. 

Wa"! entertl at Magiitile7iHall in Ox- And at laft Lord Chief Juflice of the 

ford In the 17th year of his age. court of Kivg's TJench Mny 18, iC-ii. 

Admitted of Lincolus Lm, Nov. 8, Which place he refigncd Ffl'. 20, 

i6z9. 161 ')-6. 

Made a Judge of the court of Coww7ca And. died the Chijli)ias following, 

'Fleai i<553» 2?fc. 25, 1675. 



ii 77:-? P R E F A C E. 

he at laft plainly told him, that he was not latisfied 
with the lawfulnefs of his authority, and therefore 
fcrupled the accepting any commiflion under it, to 
which Cromiuel replied, that iince he had got the pcl- 
feflion of the government, he was refolved to keep ir, 
and would not be argued out of it; that however it 
wat his defire to rule according to the laws of the 
• land, for which purpofe he had pitcht upon him as a 
proper perfon to be imployed in the adminiftrarion of 
juflice, yet if they would not permit him to i^ovein 
by red gowns, he v/as refolved to govern by red 
coats. 

Upon this confideration , as alfo of the neceffity 
there at all times is, that juftice and property fhould 
be preferved, he was prevailed with to accept of a 
judge's place in the court of con.mon-pleas, wherein 
he behaved with great impartiahty, conftantly avoid- 
ing the being concerned in any Itate-affair, and tho 
for the firft two or three circuits he fat indifferently on 
the plea-fide or the crown-fide, yet afterwards he ab- 
folutelv refufed to fit on the crown-fide, thinkin^j i: 
the fafer courfe in (o dubious a cafe. 

But notwithftanding his diflike to Cromv:eh govern- 
ment, yet this did not drive him, as it did lome o- 
thers, into the extremes of the contrary party; for up* 
on the reftoration, of which he was no inconfiderable 
promoter, he was not for making a furrender of all, 
and receiving the king without any reftricffions ; on 
the contrary he thought this an opportunity not to be 
loft for limiting the prerogative, and cutting off fome 
ufelefs branches^ that ierved only as inftruments of 
opprcfTion, tor which purpofe he moved, as bifliop 
Burmt relates (/»), " Tiiat a committee might be ap- 
" pointed to look into the propofitions that had 
" been made, and the conceflions that had been of- 
I '' ferd 

'* 0>) 'Biirnet\ hift, of own times, VoL\. /. 88. 



The PREFACE. iii 



'* ferd by the lare king, and from thence to digeil 
'"'- luch propolitlons, as they Ihould think fit to be lent 
** over to the king. 

This motion was feconded, and tho through general 
M.on\Cs means it faild of fuccefs, yet it lliewed our au- 
thor's render regard for the liberties of the fubjed, and 
that he was far from being of a mind with thofe, who 
lookr on every branch of the prerogative as '^urc di- 
'vino and indefealible. 

But notwithftanding this attempt, which fhewed lie 
was not cut out for fuch comphances, as ufually render 
a man acceptable to a court, jqi fuch was his unble- 
mifhed charadler, that it was thought an honour to his 
majefty's government to advance him firft to the fta- 
tion of Lord Chief Baron, and afterwards to that of 
Lord Chief Jurtice of the king's bench; nor indeed 
could fo great a truft be lodged in better hands. 

When he was firil: promoted, the Lord Chancellor 
Clarendon upon delivering to him his commillion told 
him among other things, " That if the king could 
" have found out an honefter or fitter mf.n for that im- 
" ployment, he had not advanced him to it, and that 
" he had therefore preterd him, becaufe he knew 
*' none, that deferved fo well (c). 

He behaved in each of thefe places with fuch un- 
corrupt integrity, fuch impartial juflice, fuch dili- 
gence, candor, and affability, as juftly dre\t^ the chief 
pradlice after him, whitherfoever he v/ent; he con- 
llantly fhund not only the being corrupt, but every 
thing which had any appearance, or might afford the 
leaft fuipicion of it; he was fincerely bent on difco- 
vering the truth and merits of a caufe, and would 
therefore bear with the meaneft counfel, lupply the 
defers of the pleader, and never take it amifs, when 
fumming up the evidence, to be reminded of any cir- 

cumftance 

(c) "Burner z life o^ H^le, Edit. icrSa. /. 53. 



iv The PREFACE. 

____ _ ^ 

cumftance he had omitted, for bein^^ in a hi^h de- 
gree polTed of that quahhcatioii io pecuharly necet- 
laiy to a judge, I mean patience, (without which the 
moft excellent talents may become infignificant,) no 
confiderations of his own convenience could prevail 
with him to hurry over a caufe, or difpatch it with- 
out a thorough examination, for which reafon he made 
it a rule, efpecially upon the circuits, to be (hort and 
fparing at meals, that he might not either by a full 
flomach unfit himfelf for the due difcharge of his 
office, or by a profufe wafte of time be obliged to puc 
off, or precipitate the bufinefs that came betore him. 

He was a great lamenter of the divifions and animo- 
fities, which raged fo fiercely at that time among us, 
efpecially about the fmaller matters of external cere- 
monies, which he feard might in the end fubvert the 
fundamentals of all religion : And tho he thought the 
principles of the non-conformiits too narrow and ftrait- 
laced, yet could he by no means approve the penal 
laws, which were then made againft them; he knew 
many of them to be fober, peaceable men, who were 
well aflec^ed to the government, and had fhewn as 
much diflike as any to the late ufurpation, and there- 
fore he thought they deferved a better treatment; 
befides he lookt on it as an infringement on the rights 
of confcience, which ought always to be held facred 
and inviolable, and therefore ufed to fay, that the 
only way to heal our breaches was a new ad of uni- 
formity^ for which purpofe he concurd with Lord 
Keeper Bridgman and Bilhop Wilhns in ferting on toot 
a fcheme for the comprehenfion of the more mode- 
rate didenters, and an indulgence towards others, and 
drew the fame up into the form o^ a bill, alrho by a 
vote of the lioufe of commons it was prevented from 
being laid before the parhamenc. 

I Tho 



The P R E F A C E. 



Tho bv chis means he was hinderd from obtainino; 
a repeal of thole laws, yet could he never be brought 
to give any countenance to the execution of them. 
I have heard it credibly related, that once when he 
was upon the circuit there happend to be a grand jury, 
who thought to make a merit ot prefenting a worthy 
peaceable non-conformift that liv'd in their neighbour- 
hood; upon this occaiion our judge could not avoid 
reprimanding them for their ill-placed zeal, which 
vented itfelf this way, while no notice was taken of 
the prophanenefs, drunkennefs, and other immorali- 
ties, which abounded daily amonglf them ; in fliort, he 
told them, that if they were refolved to perfift, he 
would remove the affair to Weftminfier-Hally and if he 
could not then prevail to have a ftop put to it, he 
would refign his place, for he had told the king when 
he firft accepted it, that if any thing was preif upon 
him, which was againft his judgment, he would quit 
his poll. 

He always retaind a ferious impreilion of religion, 
and in particular was a puncStual obferver of any vow 
or engagement he had laid himfelf under. Having 
in his younger days on a particular occafion made a 
vow never lo drink an health again, he could never 
be prevaild on upon any coniideration to difpenfe with 
it, altho drinking healths was then grown to be the 
fafliionable loyalty of the times. 

And thus in every character of life he was a pattern 
well worthy ot imitation : in fhort, he was a public 
blefiing to the age he lived in, and not to that only, 
but by his bright and amiable example to fucceed- 
ing generations j for as a pattern of virtue and good- 
nefs will always be a filent, tho fharp reproof to thofe 
who deviate irrom it, fo to noble and generous minds 
it will not fail of being a mighty fpur and incentive to 

[BJ the 



vi 7A^ P R E F A G E. 

the imitation of it, and by that means leave a real 
and lafting, tho fecret influence beliind it. 

As he juftly merited the elteem of all, fo in parti-^ 
cular he has well deferved of the proieilion ot the 
law, to which he was fo fhining an ornament; he con- 
tributed more by his example to the removal of the 
vulgar prejudices againft them, than any argumenE 
whatever could do. 

The great Archbifhop U/Jjcr had entertaind fome 
prejudices of that kind, but by converfation with 
our author and the learned Selden^ he was convin- 
ced of his miftake; our audior declaring, " Tiiac 
*' by his acquaintance with them he believed tiiere 
" were as many honeft men among the lawyers pro-* 
« portion ably, as among any profeflion of men in 
" England. 

Never was the old monkilh maxim, Bonus Jurifta 
malus Chri/iiiy more thoroughly confuted than by his 
example, he demonllrated by a living argument, how 
pradicable it was to be both an able lawyer and a 
good chriftian ; indeed he faw nothino- in the one 
that was any way incompatible with the other, nor did 
he think, that an unaffedted piety fat with an ill grace 
on any, be his ftation never io high, or his learning- 
never fo great ; for tho he diligently applied himfeif 
to the buiinefs of his profeflion, yet would he never 
fuifer it fo to engrofs his time as to leave no room for 
matters of a more ferious concernment, as may appear 
from the many tracSts he has wrote on moral and reli- 
gious fubjedb. 

For this reafon, when he found the decays of na- 
ture gaining ground upon him, he could no longer 
be prevaild with to (ufpend the refoiution he had 
taken to refign his place, that after the example 
of that great emperor Charles V. he might have an 
4 interftice 



The PREFACE. vii 



interftice between the bufinefs of life and the hour of 

death (<^). 

No wonder then that one fo great, {q good, fhould 
be loved and efteemed while living, fhould be revered 
and admired when dead; no wonder the king Ihould be 
loth to part with him, who had been fuch a credit to 
his government 3 tho had he held his place fome lew 
years longer, fuch a fcene of affairs did then open, as 
in all likelihood would have greatly diflreff him how 
to behave, as Avell as the court how 10 get rid of one, 
who could not have been removed without c^reat re- 
proach, nor continued without great obllrudion to 
the violent meafures, that were then purfued. 

But it is time to ftop, for I mean not 10 write the 
hiflory of his life, this would require a volume of in 
felfi and is long ago performed by an able hand {e); 
I fhall therefore only fubjoin his charadfer as drawn by 
that learned prelate and other eminent cotemporaries, 
by which it will appear, that future times cannot out- 
o;o his own in the veneration and efteem they bore 
him. 

The bifhop expreffes it in fhort thus, " That he was 
" one of the greateft patterns this age has afforded, 
" whether in his private deportment as a chriftian, or 
" in his pubhc employments, either at the bar or on 
" the bench (/) "; having given it more at large (^) 
in the vvords of a noble perlbn, whom he ftyles one 
of the greateft men of the profeilion of the law (/?), 
" He would never be brought to difcourfe of public 
" matters in private converiation, but in queflions of 
" law when any young lawyer put a cafe to him he 
*' was very communicative, eipecially while he was ac 

" tiie 

{d) Inter WdS iiegdtia £5? monh di- (c) Bp. "Burnet. 
em oportere fparium intercedere. Stra- (f) f. 218. 

da de bello Eelgico, Vol.1, fub aw:o Cg) f- 171. 

1555. (h) Suppofed to be the then carl of 

Nottingham. 



Viii 7he PREFACE. 

'' the bar: But when he came to the bench, he grew 
" more referved, and would never luffer his opinion in 
*' any cafe to be known, till he was obliged to declare 
" it judicially ; and he conceald his opinion in f^reat 
" caies fo carefully, that the reft of die judges in the 
" fame court could never perceive it; his Reafon was, 
" becaufi every judge ought to give fentence according to 
" his own perjwafion and confctence^ and not to be fiva)ed 
" by any rejpedi or deference to another maris opinion: 
" And by this means it happend fometimes, that when 
" all the barons of the Exchequer had deliverd their 
" opinions, and agreed in their reafbns and argu- 
" ments, yet he coming to fpeak laft, and differing 
" in judgment from them, hath expreft himfelf with 
*' lb much weight and folidity, that the barons have 
" immediately retradted their votes and concurred with 
" him. He hath fate as a judge in all the courts of 
*' law, and in two of them as chief, but ftill where 
" ever he fat, all bufinets of confequence followed 
" him, and no man was content to lit down by the 
*' judgment of any court, till the cafe was brought 
" before him, to lee whether he were of the fame 
" mind, and his opinion being once known, men did 
" readily acquiefce in it ; and it was very rarely feen, 
" that any man attempted to bring it about again, and 
" he that did lo, did it upon great difadvantages, and 
" was always lookt upon as a very contentious per- 
" fon ; fo that what Cicero fays of Brutus^ did very 
" often happen to him, Etiam quos contra Jiatuit^ 
" izc^uos placatojque dimijit. 

" Nor did men reverence his judgment and opinion 
" in courts of law only; but his authority was as great 
*' in courts of equity, and the fame relpcd: and fub- 
" million was paid him there too ; and this appeard 
" not only in his own court of equity in the Exche- 
" quer-chamber, but in the Chancery too, for thither 
4 "he 



7^? P R E F A C E. ix 

" he was often called to advife and affift the lord chan- 
" cellor, or lord keeper for the time being; and if 
" the caufe were ot difficult examination, or intri- 
" cated and entangled with variety of fettlements, no 
*' man ever fhewed a more clear and difcerning judg- 
" ment: It it were ol great value, and great perions 
" interefted in it, no man fhewed greater coura2,e and 
*' integrity in laying alide all relpedf of perfons : 
" When he came to deliver his opinion, he always 
" put his difcourfe into fuch a mediod, that one part 
'' of it gave light to the other, and where the pro- 
" ceedings of Cliancery might prove inconvenient to 
" z[\Q fubjed:, he never Ipared to obferve and reprove 
*' them : And from his obfervations and difcouries, the 
" Chancery hath taken occafion to eifablifh many of 
" thole rules by which it governs it felf at this day. 

" He did look upon equity as a part of the com- 
" mon Law, and one of the grounds of it ; and there- 
" fore as near as he could, he did always reduce it to 
" certain rules and principles, that men might ftudj it 
" as a (cience, and not think the adminiftration of it 
" had any thing arbitrary in it. Thus eminent was this 
" man in every llation, and into what court foever he 
" was called, he quickly made it appear, that he de- 
" ferved the chief feat there. 

" As great a lawyer as he was, he would never fuffer 
*' the ftri(5lnefs of law to prevail againft confcience; 
*' as great a chancellor as he was, he would make ufe 
" of all the niceties and fubtilties in law, when it 
" tended to fupport right and equity. But nothing 
" was more admirable in him, than his patience : He 
" did not alfecf the reputation of quicknefs and di(- 
" patch, by a hafty and captious hearing of the coun- 
" lei : He would bear widi the meaneft, and 2;ave eve- 
" ry man his full fcope, thinking it much better to lofe 
" time than patience : In fumming up ot an evidence 

[C] ■ . " to 



The PREFACE. 



" to a jury, he would always require the bar to inter- 
" rupt him if lie did miftake, and to put him in mind 
" oi it, if he did forger the leaft circumftance; fome 
*' judges have been difturbed at this as a rudenefs, 
" which he always lookt upon as a fervice and re- 
" fpedt done to him. 

" His whole life was nothing elfe but a continual 
" courfe of labour and indulhy, and when he could 
" borrow any time from the public (ervice, it was 
" wholly emplovd either in philolbphical or divine 
" meditations, and even that was a public fervice too, 
" as it harh proved ', for they have occaliond his wri- 
" ting of inch treatifes as are become the choiceft 
" entertainment of wife and good men, and the world 
" hath reafbn to wifii that more of them were prmt- 
" ed : He that conf^ders the aftive part of his life, 
" and with what unwearied diligence and application 
" of mind he difparched all mens buiineis, which 
" came under his care, will wonder how he could find 
" any time for contemplation : He that confiders again 
" the various ftudies he part thro, and the n:any col- 
" le(5fions and oblervations he hatji made, may as 
" juftly wonder how he could find any time for ac- 
" tion : But no man can wonder at the exemplarv pie- 
" tv and innocence of fuch a life fo fpent as this was, 
" wherein as he was careful to avoid every idle word, 
" fb it is manitelf he never fpent an idle day. They, 
" who came far fhort of this great man, will be apt 
" enough to think that this is a panegyric, which m- 
*' deed is a hiftory, and but a little part of that hilfo- 
" ry which was vath great truth to be related of him . 
" Men, who defpair of attaining fuch perfedion, are 
" not willing to believe that any man q\(q did ever ar- 
" rive at fuch a height. 

" He was the greatefl lawyer of the age, and might 

" have had what pradtice he pleafed, but tho he did 

3 " moft 



ry&^ P R E F A C E. XI 



*' moft confcientioufly nffed: the labours of his profef- 
" fion, yet at the fame time he defpiled the gain of 
" it and of thofe profits which he would allow him- 
<' felf to receive he always fet apart a tenth peny for 
" the poor, which he ever difpcnfed with that fecre- 
" cy, that they who were relieved, feldom or never 
*' knew their benefador: He took more pains to avoid 
*' the honours and preferments of the gown, than 
*' others do to compafs them. His modelly was be- 
*' yond all example, for where fome men who never 
♦' attaind to half his knowledge, have been pufft up 
" with a hic^h conceit of themieives, and have aiied- 
*' ed all occafions of raifing then* own efteem by de- 
" preciatin<T other maen, he on the contrary was the 
" moft obliging man that ever pradifed: If a young 
" crentleman happend to be retaind to argue a point 
" in law, where he was on the contrary fide, he 
« would very often mend the objedions when he 
" came to repeat them, and always commend the gen- 
" tleman, if there were room tor it, and one good 
" word of his was of more advantage to a young man, 
" than all the favour of the court could be ". 

Upon the promotion of lord chief juftice Rainf 

ford, who fucceeded him in that office, the then lord 

cliancellor expreft himfelf thus, (i) " The vacancy of 

" the feat of the Chief Juftice of this court, and that 

" by a way and means fo unufual, as the refignation 

" of him,' that lately held it, and this too proceed- 

in^T from fo deplorable a caufe as the infiimicy of 

that body, which began to forfake the ableft mind 

that ever prefided here, hath filled the kingdom 

with lamentations, and given the king many and 

penfive thoughts how to fupply that vacancy a- 

crain, " and then addreifing himfelf to his fucceffor, 

" the very labours of the place, and that weight and 

" fatigue 



u 
li 
n 
a 
it 



(i) 'Burnet /. 21;, 21; 



xii The PREFACE. 



" fatigue of bufinefs, which attends it, are no fmall 
" difcoLiragements i for what fhoulders may not juftly 
" fear that burden, wliich made liim ftoop, that went 
*' before you I Yet I contels you have a greater dif^ 
" couragement than tlie mere burden of your place, 
*' and that is the unimirable example of your prede- 
*' ceilor ; Onerofura eji fmccdere bono prinapi was the 
" fa)'ing o( him in the panegyric, and you will find 
" It lb too, tliat are to fucceed fuch a chief juibce, 
" ot fo indefatigable an indullry, fo invincible a pa- 
" tience, io exemplary an integrity, and fo magnani- 
" m.ous a contempt of wordly things, without which 
" no man can be truly great, and lo all this a man that 
" was fo abfolute a mailer of the fcience of the law, 
" and even of the mod abftrufe and hidden parts of 
^' It, that one may truly fay of his knowledge of the 
" law, what St. Aiifiin laid of St. Hieronh knowledi^e 
" in divinity. Quod Hkron^mus nefcinjit^ nullm moria- 
" limn unquam jcivit. And rlierefore the king would 
" not flitfer himfclf to part with fo great a man, till 
" he had placed upon him all the marks of bounty 
" and efteem, which his retired and weak condition 
" was capable of ". 

To this the new chief jufiice, (peaking of his pie- 
decelfor, anfwerd in the following words. 

" A perfbn in whom his eir.inent virtues and 

" deep learning have lona manasred a conteft for the 
" fupenority, which is not decided to this day, nor 
" will it ever be determined 1 flippofe, which fhall 
" get the upperhand : A perfbn that has fat in this 
" court many years, of whofe ad:ions there I have 
" been an eye and ear witnefs, that by the 2;reatnefs 
" of his learning always charmed his auditors to reve- 
" rence and attention : A perfbn of whom I think I 
" may boldly fay, that as former times cannot fhew 
" any fuperior to him, fo I am confident fucceeding 
3 " and 



The PREFACE. xiii 



*' and future time will never fhew any equal. Thefe 

^' confiderations heightend by what I have heard from 

" vour lordfliip concerning him made me anxious and 

" (doubtful, and put me to a ftand how I fhould fuc- 

" ceed fo able, io good, and lo great a man : It doth 

" very much trouble me, that I, who in comparifon 

" of him' am but like a candle lighted in the fun- 

" fhine, or like a glow-worm at mid-day, fhould fuc- 

" ceed fo great a perfon, that is and m\\ be fo emi- 

" nently famous to all poflerity, and I muft ever wear 

" this motto in my breail to comfort me, and in my 

" actions to excufe me, 

" Sequitur^ quami/is non pajjibus tuquis. 



Mr. Baxter^ with whom our author wds very intimate 
towards the latter part oi his life, defcribes him in 
theie words (^), " Sir JUatthezu Hale, that unwearied 
*' iiudent, that prudent man, that folid philofopher, 
" that famous lawyer, that pillar and bahs of juftice, 
" who would not have done an unjuft ad: for any word^ 
" ly price or motive, the ornament of his majelfy's go- 
" vernment, and honour of England, the higheft fa- 
" culty of the foul oi Wefiminjicr-Hall, and pattern to 
" all the reverend and honourable judges; That godly 
" ferious pradical chrillian^ the lover of goodnels and 
'^ all good men, a lamenter of the clergies felfrrhnefs 
" and unfaithfulness and difcord, and of the fad divi- 
" fions following hereupon, an earned: defirer of their 
^' reformation, concord, and the church's peace, and 
*' of a reformed a(5t of uniformity, as the beft and ne- 
" ceffary means thereto; That great contemner of the 
" riches, pomp and vanity of the world; That pattern 
" of honefl: piainneis and humility, who while he 
" fled from the honour, that purfued him, was yet 
" Lord Chief Juflice of the King's-bench, after being; 

[D] '< long 

(k) Haxter'^ note? on Lord Hsle\ life, /. 43, 



xiv The P R E F A C E. 

" long Lord Chief Baron of the Exchequer j livino- 
" and dying, entring on, ufing, and voluntarily fur- 
" rendring his place of judicature with the moil uni- 
*' verfal love, honour and praife, that ever did Emlifh 
" fubject in this age, or any that juft hiftory doth ac- 
*' quaint us with, ^c. ^c. ^c. " 

Thus far for the author. 

As to the work it felf, if any of our author's per- 
formances might challenge the precedence of the reft, 
tills feems to have the jufteft claim to it, as bein<T a 
favourite work, which he often reviewd, and was at 
vaft pains and charge in furnifhing himfelf with proper 
materials for. 

His companionate concern for the lives and liber- 
ties of mankind on the one hand and for prefervin^^ 
the public peace and tranquillity on the other had 
podeft him M^ith an opinion of the high importance, 
that the pleas of the crown, efpecially thofe relatinc^ 
to capital otfenfes, Ihould be reduced to certain rules, 
and thofe rules clearly and plainly underftood, that fo 
there might be as little room left as poftible either for 
erring in or perverting of judgment. 

It was this led him to make the crown-law his prin- 
cipal ftudy, to which he applied himfelf with great 
afllduity, for as bifhop Burmt fpeaking of this trea- 
tife informs us (/), " it was by much iearch and lon^r 
" obfervation he compofed tiiat great work concern- 
'^ ing it ". The fame author acquaints us (rn), that 
he had begun his colledions relating hereto in the 
reign of King Charles I. " but after the kinf^ was mur- 
*' derd he laid them by, and that they might not fall 
" into ill hands, he hid them behind the wainfcortin^^ 
" of his ftudy, for he faid, there was no more occafwn 
" to uje them^ till the ktng jhoidd be again reflored to 
I " his 

(0 t- 90. (m) p. 39. 



The PREFACE. xv 



" his r'if^ht^ and fo upon his majefty's reftorarion he 
" took them our, and went on in his defign to perte€l 
" that great worlc. 

Hence it appears highly probable, that he intend- 
ed this work for the public, altho the bufinels ot his 
llation did not afford him leilure to publiih it du- 
rin<7 his hfe ; however about four years alter his death 
the houfe oi Commons took fingular notice of it, and 
thouc^ht it a work of fuch coniequence, as to pafs a 
voteY^^J deiiring his executors to print it, and appoint- 
ed a committee to take care thereof, but that parlia- 
ment being ioon after dilfolved (o) this defign dropr. 

Some years fince there was pubUfhed a treatife, inti- 
tied, vitas of the Croivn by Sir Matthew Hale, but 
this was only a plan of this workj containing little 
more than the heads or divifions thereof, concern- 
in^T which the editor in his preface expreffes himfelf 
thus, " He [our author] hath written a large work up- 
" on this fubjecl:, intitled, ^n Htfiory of the Fleas of 
" the Crown^ wherein he fhews what the law anciently 
" was in thefe matters, what alterations have from 
" time to time been made in it, and what it is at this 
" day; He wrote it on purfofe to be -printed^ finiihed 
*' it, had it all tranfcribed jor the prefs in his life-time, 
" and had revifed part of it after it was tranfcribed. " 

It is therefore to be hoped, the publication hereof 
will not be thought any way to interfere with the di- 
redion of his will, That none of his MSS fhould be 
printed after his deaths except fuch as he fhouid giqje 
order for during his life^ his intention for printing it 
being (o apparent, as may well amount to an order 
for (o doing. 

Befides as bifliop Burnet obferves (/?), this prohibi- 
tory claufe in the will feems in fome meafure to be re- 
voked by his codicil, wherein he orders, that if an^ 

hook 

(n) Not. 29. 1580. (0) jm. 18. i(J8o, f/j /. 185. 



xvi nv PREFACE. 

hok of his zuriting jhould be printed, then zchat Jhould 
be given as a confideration for the copy jhodd he divided, 
&c. a kind of implication, thai: he had left the print- 
in2, thereof to the difcietion of his executors. 

The abovementiond writer further obferves (a), 
that his unwillingnefs to have any of his works printed 
after his death proceeded from an appreheniion, left 
they Ihould undergo any expurgations or interpolations 
in the licenfing them, for this, he faid, might in mat- 
ters of law prove to be of fuch mifchievous conjequence, 
that he was refohed none of his writings fhould be at 
the mercy of the liccnjers. 

But as there is no fuch thing required by the laws 
now in being, diat reafon is at an end, and the reader 
may be alfured that the edition here oHerd to the 
publick is printed faithfully from the author's original 
manufcript. 

This manufcript conlilfs of one thick folio volume 
all in our author's own hand-writing, from wjience it 
was tranfcribed in his life-time, and the tranfcript has 
fince been bound up in feven fmall volumes in tolio. 

It had been by him revifed as far as Chap. irj. in 
the firfl part, viz^. about the middle of the third vo- 
lume, as appears from many interlineations and addi- 
tions in his own hand; the corredions in the remain- 
ing part are in another (very modern) hand, and in 
fome places not very agreeable to the fcope of the ar- 
gument. 

This tranfcript therefore fo far as revifed and correcfl- 
ed by our author (and no farther) may be deemed the 
ori2;inal finifhed and perfected, but fince even in this 
part there are in fome places leaves taken out and 
others infer ted in their room in a different hand, 
unauthenticated by our author, and fometimes quire 
diflurbinc; the coherence and connexion of the di(- 
I courfe, 



The PREFACE. :^Yii 



courfe, it was not thought warrantable to confider fuch 
interpolations as a part of this treatife, tor as it can- 
not be doubted but great regard will be always paid 
to the performance of (o efteemd an author, it is a 
piece of juftice due both to the author and the pub- 
lic, that nothing (hould be herein inferted, but what 
is undeniably his, and carries evident marks of being 
bv him intended as part of this work. 

' The title hereof was named by our author liimfelf 
Htfloria Placitorum Corona, tor he intended, as appears 
from the Proemmm^ to have taken in the whole body 
of the crown-law, as well in relation to matters civil, 
as matters criminal, for which purpofe he once defign- 
ed to have added two more books upon this fabject, 
the one concerning olfenfes not capital, the other 
touching franchifes and liberties, but to the great de- 
triment of the public neither of thefe appears ever to 
have been compofed by him, fo that as it now llands 
it treats only ot offenles capital, which is indeed the 
moft important branch of the crown-law, being what 
mod nearly affeds the life and liberty of the fub- 
jecf; befides in treating hereof he has unavoidably 
explaind many incidental matters equally applicable 
to offenfes not capital. 

The jirft part of this work relates to the nature oi 
the offenfes, ^viZj. the feveral kinds oi treafon^ herejy 
and felony; the fecond of thefe, herefv, being an ot- 
fenfe of a fpiritual nature, of which it vj^s not our 
author's purpole to treat, was at firil whollv omitted 
by him, but afterwards confidering, as I fuppofe, that 
by its being circumfcribed bv a6f of parliament, njizj. 
I EliZ:. it became an oflen(e o^ temporal cognizance, 
he thought proper to inlert a chapter upon that head. 

The fecond part relates to the manner of proceed- 
ing asainrt otFenders, wherein are confiderd the junl- 
Z [E] v: diction 



xviii The PREFACE. 

di6tion of the feveral courts, the manner of appre- 
hending, committing, baihng, and arraigning olien- 
ders, their feveral pleas, bringing them to trial, judg- 
ment, and execution. 

Having thus given fome general account of the au- 
thor and the work, it will be proper in the next place 
to acquaint the reader with the part I have had in this 
edition, which has been to fupervife the printing there- 
of that it be agreeable to our author's manuicript, 
which being written in a very obfcure hand might by- 
one wholly unacquainted with the law have been fre- 
quently miftaken. 

To make this work the more authentic the feveral 
references herein made to the records have been com- 
pared v;inh the originals at the reipecffive offices in the 
Tower and Wcjimtnjier. 

I have alfo carefully examined the feveral quotations 
from the year-books, reports, ^c. many oi winch be- 
ing quoted without folio or page or elfe mif-quoted 
have with no fmall trouble been lupplied and rectified, 
for our author not having always had leifure to confuin 
the books themfelves has frequently copied from xho. 
mil-printed quotations in the margin of lord Coke's 
third volume of his Inftitutes. 

As it cannot be expedted but in the writing (o large 
a manufcript fome words muft currente calamo have 
been omitted or wrong written, I have in fome few 
places taken the liberty to add or alter a word or two 
to preferve the fenle, but have been particularly care- 
ful to diftinguifh fuch addition or alteration within 
crotchets, that I might not impofe my judgment on 
the reader, ^^i leave him to judge for himfelf, whe- 



ther the drift of our author's reafoning do not re 
quire it. 

Z I have 



ne PREFACE. xix 

I have likewife fubjoind a few notes containing 
fome obfervations from the records, as alfo remark- 
ing, where the law hath been fince explaind by later 
relolutions, or alterd by fubfequent adts of parliament; 
but as thefe ads are fometimes very long, confifting 
of many claufes, the reader is defired to ufe the fame 
caution here, which is recommended by our author {r) 
with regard to thofe recited in the work it felf, ^iz^. 
" that he rely not barely upon the abftra(5ts thereof 
" here given, but perufe the ftatutes themfelves in the 
" books at large. 

I am fenfible many flips and omiffions muft needs 
have happend in the fupervifing fo large a work of fo 
critical a nature, but hope that will plead my excufe, 
at lead to thofe, who confider the wide difference 
between perufing it in a fair print and in a difficult 
manufcript. 

(r) 'Part I. f. itfi. 



March^so- S. Emljn. 



CORRl- 



CORRIGENDA. 



■ 57. 
6%. 

103, 



'Page 
z^.i}i»ot:s, col. 2. 1. 10. after ca^.i. 

r. as it is there printed. 

in notiSyfor'BztthoWnus r. Bartholus. 

in notis^ I. vlt. for 55 r. 41. 

/. 24. for fcire r. fciri. 

/. 16. for him r. himfelf. 

in not is, col. a. /.p. for poflion r. 

pofleflion. 

%.i6. I. 27. for a certain eftate r. no cer- 
tain eftate. 

/. 50. for E. 2. r. E. 3. 

/. penult, for 3. r. 4. 

/. I. r. anno regni fui decimo. 

171 notis, col. 2. /. 32. for Rot. 

part. r. Rot. pari. 

z« «ofn", col. I. I. ult- r. other fo- 

rein coin. 
4 



177' 
180, 



115. 



1>age 

284. /. 8. frora lot. for 35. r. ig. 

295. I. pemilt. in notis, for broke r. e- 

fcaped out of. 
372. in not is, col. i. /. ttlt, for miflion 

r. mifprifion. 

394. /. 5. at beginning r. II. 

395. /. 8. /or II. r. in. 

401. l.xz. at beginning r. IV. 

402. /. 6. dele IV. 

447, in notis, col. i. l.z. for Lib. r. 

Leg. 
554. ;« not is, col. 1. I. nit. for 3 & 4 W, 

& M. cap. 9. r. 12 Ann. cap. 7. if 

of the value of 40 s. 
553. /. 17. for Eliz. r. E. 6. 
701. col.z. 1. 17. r. of the court. 



TABLE 

O F T H E 

Several CHAPTERS 

Contained in the First Part. 

Chap. I. ^^^Oncerning capital Punijhments. Page i 

^ . Chap. II. Concerning the jeveral incapacities of 

^^— ^ perfons, and their exemptions from penalties 

by reafon thereof. 1 4 

Chap. III. Touching the defeSi of Infancy and non-age. 1 6 

Chap. IV. Concerning the defeSh of ideocy, madnefs, and lunacy 

in reference to criminal ptmifJjments. 2 9 

Chap. V. Concerning cafiialty and misfortune, hoiv far it eX' 

cufeth in criminals. 3 8 

Chap. VI. Concerning ignorance, and how far it prevails to ex-' 

cufe in capital crimes. 42 

Chap. VII. Touching incapacities or excufes by reafon of civil 

fubjeftlon. 43 

Chap. VIII. Concerning the civil incapacities by compullion and 

fear. 49 

Chap. IX. Concerning the privilege by reafon of neceffity. 5 z 
Chap. X. Concerning the ojfenfe of high treafon, the perfon 

againfi ivhom committed^ and the reafon of the greatnefs of the 

offenfe ; and touching alligeance. 58 

[a] Chap. XI. 



A Table of the feveral Chapters 



Chap. XI. Concerning treafons at the common law, and their un- 
certainty. Page 76 

Chap. XII. Touching the flatute of 2$E. 3. and the high trea- 
fons therein declared. ' . 87 

Chap. XIII. Touching high treafon in compafling the death of 
the king, queen, or prince. c^ i 

Chap. XIV. Concerning levying of war againjl the king, i ?o 

Chap. XV. Concerning treafon in adhering to the king's ene- 
mies voithin the land or without. 1 ^^ 

Chap. XVI. Concerning treafon in counterfeiting the great feal, 
or privy feal. i 7 o 

Chap. XVII. Concerning high treafon in counterfeiting the kind's 
coin, and in the fir ft place touching the hifto?y of the coin and 
coinage of England. i g g 

Chap. XVIII. Concerning the adulteration or impairing of coin 
and the antient means ujed to remedy it. 205 

Chap. XIX. Concerning the counterfeiting of the king's coin 
what it is, what the penalty thereof antiently, and what 
at this day. 210 

Chap. XX. Concerning treafon in bringing in falle money. 225 

Chap. XXI. Concerning high treafon in killing the chancellor 
tfc. ^ ^ 230 

Chap. XXII. Concerning principals and acceffaries in treafon. 

233 
Chap. XXIII. Concerning forfeitures i>y treafon. 229 

Chap. XXIV. Concerning declaring of trealbns by parliament 

and thofe treafons that were enacted or declared by parliament 

between the I'y'E. 3. and the i Mar. 258 

Chap. XXV. Concerning treafons declared and ena£led from 

I Mar. till this day, viz. i 3 Car. 2. 307 

Chap. XXVI. Concerning the judgments in high treafon, and 

the particulars relating thereunto, and to attainders. 342 
Chap. XXVII. Touching corruption of blood, and reftitution 

thereof, lofs of dower, forfeiture of goods, and execution. 

Chap. XXVIII. Touching the crime c/ mifpriiion of treafon and 
lelony, ^c. ^ ■- x 

.^ . Chap. XXJX. 



.- Contained in the First Part. 

Chap. XXIX. Concerning petit treafon. Page 3 7 7 

Chap. XXX. Concerning herefy and apoftacy, and the puniJJj- 
ment thereof. 3 <^ 5 

Chap. XXXI. Concerning hormoi^t, andfirfl of it]£-\^i\\\v\^, or 
felo de fe. 411 

Chap. XXXII. Of deodands. 4 1 9 

Chap. XXXIII. Of homicide, and its feveral kinds, and firfi 
of thofe conjiderations, that are applicable as well to^ murder as 
to manilaughter. 424 

Chap. XXXIV. Concerning commanding, coimfelling or abet- 
ting of murder or manjlaughter. 435 

Chap. XXXV. Concerning the death of a perfon unknown, and 
the proceedings thereupon. 447 

Chap. XXXVI. Touching murder what it is, and the kinds 
thereof. 449 

Chap. XXXVII. Concerning murder by malice implied pre 
fumptive, or malice in law. 455 

Chap. XXX\'^III. of manilaughter, and particularly of man- 
flaughter exempt from clergy by the fiatute of i Jac. cap. 2. 

466 

Chap. XXXIX. Touching involuntary homicide, and jirfl of 
chance-medley, or killing per infortunium. 47 i 

Chap. XL. of manjlaughter ex necelTitate, and flrfl fe deien- 
dendo. 4 7 3 

Chap. XLI. Concerning the forfeiture of him that kills in his own 
defenfe, or per infortunium. 492 

Chap. XLII. Concerning the taking away of the life of man by 
the courfe of law, or in execution of juftice. 49^ 

Chap. XLIII. O/larciny and its kinds. 503 

Chap. XLIV. Concerning the diverlities of grand larcinies among 
themfelves in relation to clergy. 517 

Chap. XLV. Concerning petit larciny. 530 

Chap. XLVI. 0/ robbery. 532 

Chap. XLVII. Concerning reftitution of goods flolen, and the 
confifcation of goods omitted in the indictment or the ap- 
peal. 53^ 

Chap. XLVIII. of burglary, the kinds, and puniJJ.ments. 547 

Cliap. XLIX. 0/arfon, or wilful burning of houfes. 566 

Chap. L. 



A Table of the feveral Chapters, &c. 

Chap. L. Concerning felonies by the common law, relating to 
the bringing of felons to jurtice, and the impediments thereof^ 
as ejcape, breach of prifon^ and rescue ; and fir ft touching ar- 
rets. Page 57 5 
Chap. LI. Of felony by voluntary efcapes, and touching felony by 
elcapes of felons. 590 
Chap. LIL Of negligent efcapes. 5oo 
Chap. LIIL Concerning refcues of pr if oners in ciiftody for felony. 

606 
Chap. LIV. Concerning efcapes and breach of prifon by the 
party himfelf that is imprifond for felony. 60 j 

Chap. LV. Of principals and accejjaries in felony., and firft of 
acceifaries before the fa6l. 6 1 2 

Chap. LVL Of acceflaries after the fa£l. 5 1 8 

Chap. LVII. Concerning the order of proceeding againfl accef 
faries. 625 

Chap. L-VIII. Concerning felonies by a6l of parliament, and 
firft concerning rape. 6z6 

Chap. I^IX. Concerning the felony de uxore abdu£la live rapta 
cum honk v'ln, fuper ftatutum Weftm. 2. cap. -^4. 6^-j 

Chap. LX. of felony by purveyors taking victuals without 
warrant. 639 

Chap. LXI. Concerning the new felonies enabled in the times of 
E. 2. E. ■^. and R. 2. ^40 

Chcp, LXll.- Concerning the new felonies enaSied in the times 
of H. 4. H. 5. H. 6. E. 4. 644 

Chap. LXIII. Concerning the new felonies enabled in the times 
oj R. T,. H. 7 . H. 8 . E. 6. and ^leen Mary. 6^ 5 6" 

Chap. LXIV. Concerning felonies newly enadled in the times 
of ^ Elizabeth, K. James, and K. Charles L 68 i 

Felonies enaSied in the times of K. Charles II. 7C James 11. 
K. William III. ^ Anne, K. George I. and K, 
George II. 697 

Chap. LXV. Certain general Cbferrations concernitg felonies by 
aa of parliame:it, . 703 



THE 



THE 



T R E m IV M. 



The Method of the Work intended. 



HAVING an intention to make a full coIIefl:ion of 
the Vkas of the Crown, I lliall divide thole pleas into 
two general trafl:s. 
The J?r/? concerning pleas of the crown in matters m- 
minal. 

The fecond, concerning pleas of the crown in matters civil, 
namely concerning franchifes and liberties. 

llie former will be the fubje£l of the firft and fecond books, 
the latter of the third book. 

Firft therefore, 1 iliall begin with the feveral kinds of 
crimes, that make up the fubje^l matter of my firfl; and fe- 
cond book. 

Crimes that are punllhable by the laws of England are for 
their matter of two kinds. 

1. Ecclejiaflical. 

2. Temporal. 

The former of thefe, namely fuch crimes as I call Eccle- 
jiaflical, are of eccleliaitical cognizance, and tho all external 
jiirifdidion, as well ecclefiaftical as temporal, is derived from 

Vol. I. [b] the 



The PR EMIU M to 



the crown of England^ and all criminal proceedings in tlie ec- 
ckfiaftical courts are in fome kind Placita corome, lliits for the 
kine;, and iV.ch as he may pardon or dilcharge, as being his own 
fuits, yet thefe 1 lliali not meddle with at this time. 

The jecond fort, 7;/:;^. Temporal crimes, which are ofFenfes 
againft the laws of this realm, whether the common law or 
afts of parliament, are divided into two general ranks or di- 
IL-ibiitions in refpeft of the piiniihments, that are by law ap- 
pointed for them, or in reipe£l: of their nature or degree ; 
and thus they may be divided into capital offenfes, or of- 
fenfes only criminal ; or rather and more properly into 

Felonies and 

Mijdemsanors, 
becaufe. there is no capital oftenfe but hath in it the crime of 
felony, and yet there be lome felonies, that are not in their 
nature capital, whereof hereafter. 

Crimen capitale, or felony in this acceptation is of two kinds, 
namely 

That which is complicated, and hath a greater ojffenfe 
joined with it, namely Jreajon, and 

That which is limply Felony. 

Touching the former of thefe, namely Treafon, it is that 
capital offenfe, which is committed againil: fome fpecial civil 
obligation of fubje£lion and faith more than is found in other 
capital offenfes, and therefore it hath the denomination of 
proditio, and the ofFente is laid to be done proditoric. 

This offenfe of Treafon is of two kinds, namely 

That which is againil the highcft civil obligation, name- 
ly againft the king, his crown and dignity, which is called 
High-treafon, 

Or againlt fome other, to whom a civil obligation of faith 
is made or implied, which is called Petit-treajon. 

The offenies of high-treaion are of two kinds, vi^ 

Such as were treafons by the common Imv, or 

Such as were made fo by Ipecial a^s of parliament. 

I'he ofienfes of limple felony are likewile of the fame dl* 
ftribution, namely 

I Such 



Hijloria Placitoram Coronce. 



Such as were felonies at common lam^ and 

Such as are by a^ of parliament put into the degree, or 
under the puniihment of felony. 

And the fame diftribution is to be made touching mifde' 
Picanors, namely they are 

Such as are lb by the common Iaxv>, or 

Such as are fpecially made punilhable as mifdemeanors 
by afts of -parliament. 

This is the general order and diftribution of the firft and 
fecond book of this tractate, namely concerning the matters 
of the pleas of the crown in criminals, or thofe crimes, 
which come under the cognizance of the laws of this king- 
dom, wherein the profecution is pro rege^ or in his name 
or right, as the common vindex of public injuries or 
crimes. 

The particular enumeration of thefe feveral offenfes is 
much of the bufmefs of thole charges, that are given to the 
grand jury by the juftices in their fev^eral fellions ; and they 
were for the moft part heretofore contained in certain articles 
or heads of inquiry deliverd out in writing to the feve* 
ral inquefts, and were often ilyled Capitula placitorum coro- 
na, fuch were thofe of R. i. mentiond by Uoveden p. 744, 
783. which were deliverd to the inquifitors in every w\^p* 
pentach or hundred, and to the juftices itinerant to make in- 
quiry upon, and by them to the grand inquefts ; and fuch 
were thofe Articuli itineris declared by Bra^on, Lib. III. de co^ 
romi, cap. i . and printed in the old Magna Carta for the ju* 
ftices in eyre to make inquiry upon, Vv'hich I Ihall not here 
repeat at Luge, but Ihall take them up as I Ihall have 
occafion to uie them. 

The order, which 1 ihall obferve in thefe Pleas of the 
cronm will be this : 

I. In the firft book I will confider of capital often fcs, Trea^ 
Jons and Felonies, which book will be divided into two 
parts, 

'i.Ths 



The P RO EMIUM,Uc. 

1 . The enumeration of the kinds of treafons and felonies, 
as well by common law, as by a<9:s of parliament. 

2. The whole method of proceedings in or upon them. 

II. The fecond book will treat of matters criminal, that arc 

not capital f and 

III. The third book will be touching franchifes and liber-^ 
ties. (^) 

(*) That which Is here offerd to the books having, as I have been credibly 

public is only the firft of thefe books, informed, never been compofed by our 

confifting of two parts 5 the other two author. 

I 



H I S T O- 



I 



H I STORI A 

PLACJTORUM CORONM 



Part I. 

m ■■■ ■' - — ^■■ — ■■ ■ ■■ — — ' — ■ ■ ■ ■- ,-.,..-■ I ■■■■ I . ..- -^ 

CAP. I. 

Concerning Capital Piinijhmcnts, 

BEING to treat concerning capital ofFenfes, it will not 
be amils to premife fomething touching capital pu- 
nilliments. 
Laws, that are Introduced by cuftom^ or inftituted by the 
leglilatlve authority for the good of civil focieties, would be 
ol little efte6l, unlefs they had alfo their ian£l;ions, impofing 
penalties \ipon the offenders of thofe laws. 

Thefe penalties are various according to tlie feveral na- 
tures of the offenfesj, or the detriment that comes thereby to 
civil focieties ; fome are only pecuniary ; fome corporal, but 
not capital, Inch as impiifonment, iligmatizing, baniiliment, 
lervitude, and the like ; others are capital, ultimum jupplicium, 
or death ; and that death fometimes accompanied with greater, 
fometimes with lefs degrees of fev^erity. 

So that, altho oiTenies agamlt the good of human foclety 
be many of them prohibited by the laws of God and nature, 
3-et the puniiliments of all fuch offenfes are not determined 
by the law of nature to this or that particular kind, but are 
for the moil part, if not altogetlier, left to the pofitive laws 
and conftitutions of feveral kingdoms and Hates. 

B And 



Z Hiftoria Placitoriim Corona. 

- '■ ■ ■ _ ~~— , ., ^,. m. ■ ■ ■-■■ - ..■■■■ ■■! ■■■——..■ I ■< _ 

And therefore, altho moft certainly the penalties inftituted 
by God himfelf among his antient people upon the breach of 
their laws were with the higheft wifdom fitted to that ftate, 
and all laws and inftituted puniiliments Ihould come up as 
near to that pattern, as may be; yet as to the degrees and 
kinds of piiniiliments of ofFenfes in foro chili vel jiidiciario they 
are not obliging to all other kingdoms or ftates, but all ftates, 
as well chriftian as heathen, have varied from them. 

And therefore it will not be amifs to inftance in the various 
kinds of punilliments inflifted by the leveral laws of feveral 
countries, efpecially in thofe two offenfes of homicide and 
theft, which are the moft common and obvious oft'enies in all 
countries. 

By the antienteft divine law, that we read, the punifti- 
ment of homicide was with death. Gen. ix. 6. Whojocver 
jheds mans blood-, by man fjall his blood be Jhed. {a) 

And the judicial law given by Mofes was purfuant' to it, 
with fome temperaments and explanations. Exod. xxl, i 2, 13, 
1 4. H?, that fmiteth a man, Jo that he die, fJ.hill jurely be put 
to death. And if a man lie not in wait, but God deliver him 
into hii hand j then I will appoint thee a place, whither he /hall 
flee. But if a man come prefumptuoufly upon his neighbour to flay 
him with guile ; thou fijalt take him away from- mine altar, that 
be may die. And v. 18, 19. And if men flrive together, and 
one fmite another with a ftone, or with his fifl, and he die not, 
but keepeth hii bed ; if he rife again, and walk abroad upon 
his fiaff, then fJjall he, that Jmote him, be quit ; only he /hall 
pay for the lofs of his time, and for his cure. 

And what this deliv^ery by God of a man into his neighbour's 
hand is, is bcft expounded Deut. xix. 4, 5, (5, i i , i 2. Whofo kil- 
leth his neighbour ignorantly, whom he hated not in time pa/I, 
As where a man cleaveth wood, and the ax flieth from the helve, 
and kilkth a man, he /Jjall fly to the city of refuge (b), lefl 

the 

{a) This law being given to Noal\ (I) Concerning thefe cities of refuge, 

from whom all men arc derived, is not fee £.W/l'. xxi. i :;. Ntttnb. Ky.K\ . 'Deitt.'w.. 

peculiar to the Jjraelitci -^ but, as our 41. ^ fcq. yc/^. xx, xxi, Scldai : de 

author obferves below, is binding en all j//rf natltrali, iiSc. Ltl. IV. caf. z. 
mankiiul. 

I 



Hiftoria PlacitGrum Coronce. 



the avenger (c) of blood purfue, and jlay him while his heart 
is hot ; whereas he was not worthy of death, in that he hated him 
not in time pafi: But if any man hate his neighbour y and lie in 
wait for him, and rife up againfl him, and fmite him mortally, 
that he die, and he jiceth to one of thofe cities, the elders of his 
city JJjall fend and fetch him thence, and deliver him into the 
hand of the avenger of blood, that he may die. {d) 

Again ; Exod. xxii. 2. If a thief be found breaking up, 
and be fmitten, that he die, there jhall no blood be fijcd for 
him : if the fun be rifen upon him, there /hall blood be fjjed for 
him ; for he fJjould make full reflitution j if he have nothing, 
then he /hall be fold for his theft. 

Upon thefe judicial laws, thele things are obfervable; 
I. that by thefe laws the killing of a man by malice fore- 
thought, or upon a fudden falh'ng out, were both under the 
fame punilhment of death, (e) 2. lliat the killing of a man 

by 



fc) Who this avenger of blood was, Is 
no where exprcfly laid, it is generally 
fuppofcd that he was the next heir to 
the perfon {lain. See Seldcn : He jnr. 
oiat. Lib. IV. cap. r. £5? de fucceffionibin 
in bona defitnBi : but the truth is, the 
Hebrew words Goel ha dam, here ren- 
der'd the avenger of blood, fliould be ren- 
der'd the next of blood, for Goel properly 
fignifies one of the fame kindred ; it is 
fo render'd iJ/zf/' II. 20. and III. 9, 12. 
and is ufually expreffed in the feptuagint 
by a.-y)(j<di"->v, which denotes one near 
of kin. 

(d) If there was no avenger of blood, 
or if he would not or could not kill the 
flayer, the flayer was capitally punl/lied 
by a judicial lentence ; and no ranfom 
or recompence was admitted. Ninnb. 
XXXV. 31. Sclden : de jur. nat. Lib. IV. 
cap. I. in fine ; even tho the perfon 
flain fliould before his death defire that 
the flayer fhould be forgiven. Mai'nw- 
r.idci Morelsevochim, 'Tars III. cap. 41. 
for all voluntary homicide was inexpi- 
able, as appears from Nz/wZ". XV. 27. — 
51. and the cafe of2)avid in the matter 
of Uriah, 'Pfal. LI. 16. there was one 
cafe indeed of capital homicide, wherein 
a ranfom was allowed, viz. If an ox were 
wont to pufh with his horn, and it had 
been teftified to his owner, and he had 



not kept him in, fo that he had killed a 
man or a woman, the owner v/as to be 
put to death, he being look'd on as the 
author of the murder, who would not 
prevent it, when he had warning, and 
might have done it j however, this be- 
ing a cale of grofs negligence, rather 
than wilful malice, he was permitted to 
redeem his life by paying the ranfom, 
which was laid upon him Exod. xxi. 29, 
;o. The price of a fervant was thirty 
fliekels of iilver. Ibid. -j. ^z. and that of 
a freeman was generally double, viz. fix- 
ty fliekels. Maimon. More Ncvochim, 
'Pars III. cap. 40. 

This was alio felony by the common 
law of England, for by fuch fufferance 
the owner feem'd to have a will to kill. 
Sta?nf.'P.C. 17. Fitz.Cor.~,ii. 

(e) The law Was general, 'that tvho- 
ever fmitcth a man, Jo that he die, pall 
fnrcly be put to death. Exod. xxi. la. 
There were indeed fome exceptions from 
this general law, but, fetting afide the 
cafe of an houfe breaker in the night, 
they all related to cafual involuntary ho- 
micides ; there is not one exception of 
a voluntary deiigned killings whether iud- 
dcn or premeditated, (whatever interpre- 
tations might be afterwards made by the 
jfe'vif: Rabbi's, who made the command- 
njenrs of God of none cffc^ thro' their 

traditions. 



4 Hijtoria Placitoriim Corouie. 

-■— . I T 

by mislbrtune was not liable to the punlfhment of death, by 
the fentence of the judge ; but yet the avenger of blood might 
kill him, before he got to the city of refuge. (/) 3. The 
killing of a thief in the night was not liable to punifhment of 
death ; but if it were in the day-time, it was punilhable w^ith 
death. 4. Tho there is no exprefs law touching killing a 
man in his own defenfe (g\ yet it feems the cuftom of the 
Jews, and the interpretation of the Jemjl) do£lors, excufed 
that faft from the punilhment of death, {h) 5. That the 
ufual manner of the execution of the fentence of death was 
iloning, and fometlmes ftrangulation. (/') 

Now I will conlider fome of the laws of other nations in 
reference to homicide ; wherein tho there is a great analogy 
in fnany things between the laws of the Jervs, and the laws 
of other countries ; lo that a man may realonably coUeftj 
that thefe judicial laws of the Jerps were taken up by other 
nations, as the grand exemplar of their judicial laws j yet in 
fome things they departed from them in the particular con- 
ftitutions and cuftoms of other countries. 

Among the leges Attics collected by ]\lr. Petit LikYII. 
tit. I . theie were many of the laws concerning homicide. 

I Senatus 

traditions. Mat. xv. 6.') fo that there is More Nevocbim, ^Pars III. c/r/". 40. and 

nothing in the Je-ixiflj law to countenance j^infivorth on Nmnhcrs xxxv. 15. 

the (liilinftion made by the laws oi Eiig- fg) This was a cafe fo plainly iuflifi- 

laud between murder and manflaughter, able by the law of nature, that it needed 

a dirtinftion, which fervcs to Ihew, that no pofitive law ^ however, the permif- 

tho the laws of Englavd be much feve- fion to kill a thief, who fliould be found 

rer than the other in the cafe of theft., breaking up in the night, feems to be 

yet they are much milder in the cafe of an exprefs allowance of killing in one's 

homici'le. own defenfe ; for the reafon of that law 

(j) Unlcfs he fled to the altar, which is maiiifeitly founded on the principle of 

was alfo look'd on as a place of refuge, felf prcfervation. 'isam adverfiis fcricu- 

jt being probable from Exod. xxi. 15, 14. Lam v^tiiralis ratio fermittit fe defcn- 

that the altar was the place of refuge dcre. 'DigeQ, Lib. 9. I^it. 2. /. 4. 

before the cities of refuge were appoint- (b) When done in defenfe of life or 

cd. See Seidell: de jar. nat. Lib.W. chaHIty 5 becaufe, when loft, they are 

cc.p. z. If he did efcape to the city of irreparable. See Seldrn : de jtir. iiattir, 

refuge, he was obliged to remain there Lib. IV. cap. ;. Maimon. More Ncvo- 

till the death of the high prieU, for the cbi}??, 'Pars III. cap. ^o. 

avenger of blood might kill him, where- (i) Sometimes the execution was by 

ever he found him out of the borders of lumihg; a<! in the cafe of a pricft's 

the city. NiiMb. xxkv. i.^.—--;z. Seldoi : daughter, who had played the whore. 

vbtfiJpra S5? de Syuedriis. Lib. II. cap. 7. L.cin'. xxi. 9, Sometimes by decollation, 

but after the death of the high prieft, which was the ufual way for murder, 

lie was at liberty to go where he would 5 Seidell : de .Syuedriis, Lib. II. cal>- 13. 

for the reafon hereof fee M.umonidiS Tie jur.imtur. Ltb.lY. cap. i. 



Hi ft or i a Placitorum Coronas. ^ 



Senatus Areopaghicus jus dicito de c^de^ aut vulnere^ non cafuy 
fed vohmtate inJiiSio ; ds incendlo item, iff malo veneno hominii 
mcandi caiifa ddto. 

Tbefmotheu in bomicidas ^nim^dvenunto. 

Si quis bominem fcicns morti duit, capital eflo. 

Qui aUurn cajit fortuito necujjit, in annum deportator^ donee 
diqusm e cognatis occifi plicurit y revertitor veto peraSiis Ja- 
cris, iff lujlrationibus. 

Si cjuis imprudcns in certaminibiis ahum necujjit, aut infidian- 
tern aut ignotum in pritlio, aut in tixore, lel matre-, vel forore, 
vel Jilia, vel concubinu^ vel ej, quam in fuis liberis babet, dcpre- 
henfunij adis ergo ne exulato. 

Si quis alium injufte vim infercntem incontinenti necajjlt, 
jure Cccjus cflo. 

Si quis bomicid(tm foro, tirbis ierritorio, publicis certaminibuSy 
isf facris AmpbiByonicis abftinentem occiderit, aut mortis caufam 
prebuerit, perinde ac fi Athenienjem civem neculjit, capital cjioy 
iff Ephet£ jus dicunto. So that by this law a man conicioiis to 
himfelf" of homicide might, before he was apprehended, un- 
dertake a voluntary exile, and during fuch an exile was pri- 
vileged from the penalty of homicide, (k) 

Homicidas morte multanto in patria occisi terra, iff abdu- 
cunto, ut lege cautum efl', in eos ne f^viunto, neve pecuniam 
il) exigimto. 

Before judgment the kindred of the party flain that pro- 
fecuted the manllayer might compound the oflenfe, and releafe 
the oftender, but after judgment once given, neither the 
judge iior profecucor could remit it. {m) 

C^dis ne pj/Iulator unquam is qui bomicidam exulantem iff 
redcuntem quo non licet, in jus ad magiflratum rapuerit aut de' 
tulcrit. 

Q And 

» 

{k) This was the cafe of I'hecclyme- relations of the flain, which recompcnce 

inii in Homer Odyjf. o. v. 22+, 170. 4. was tcrm'd ''T'^ivh or tti-iik Homer. Ilia.-!, 

t'. 1 17 I. v. 62 8. cr. "V. 498. 

(I The Greek word '^Tiitf- here ren- («/) 1 hat this was the meaning of 

tlcrM peeuninm, properly fignifies a ran- the torcgoing law, fee '■Petit in leges jit- 

fv*m, H^m. liii'.d. a.. V. 15,20, i;, 95- for ticas Lib. VII. tit. i. /. 509. See alio 

by the anticnt Kiw o( Greece the puaifh- the oration of !Z)emoJlheiu's againit ^4ri- 

inent of homicide was redeemable by Jlccrarci, wherein moft of the Arbe?7iaii 

the paynjent of a fuiii of money to the laws relating to hgmicide are explained. 



6 Hijtoria Placitonim Coronce. 

And eodem llhro tit. 5. / nox fur turn faxit, fi im aliquis oc 
cijtt, jure c^efus efto, according to the Mojaicd law, and from 
thence tranlcribed into the Attic laws, and from thence by 
the Decemviri into the Roman laws of the t\\^el\^e tables in to- 
tidem verbis. 

Among the Romans the laws concerning homicide differed 
in fome things both from the Jews mA Greeks, as appears 
Digefl. Lib. XLVIIL tit. 8. Ad legem Corneliam de ficmis ^ 
venefciis. 

%ii bominem occiderit pimitor non habitu differentia cujus con- 
ditionis bominem (n) interemit. 

^iihominis occidendi furtive faciendi caufu cum telo ambulaverit, 
(0), qui bominem non occidit fed vulneravit ut occidat, ut bomi- 
cida damnandus, nam fi gladium flrinxerit iff cum eo percujfe' 
rit, indubitate occidendi animo admijit, fed fi clavi aut cuccima in 
rixa, quamvis ferro, percufferit, tamen non occidendi animo, le- 
nienda poena ejus, qui in rixa cafu magis, quam voiuntate, bomi- 
cidium admifit. (p) 

But if it were merely by misfortune, it was not puniflied, (q) 

^i fluprum fibi vel fuis per vim inferentem occidit, dimit- 
tendus eft, (r) fed is, qui uxorem in adulterio deprebenjam occi' 
dit, bumiliore loco pofitus in exilium pcrpetuum dandus, in aliqua 
dignitate pofitus ad tempus relegandus. (f) 

Fur em noBurnum qui occiderit, impune feret, fi parcere ei fins 
periculo juo non potuit (t) ; which law, tho like to that of the 
Jeips and Greeks, the Roman lawyers have conlbued (//), that 

it 

(n) I. I. 5. a. fiavc, vet there lay an pfilis aBio in the 

(0) /. I. fr. ^ Cod. eod. tit. Lib. IX. cafe of killing a freeman. See Noodt ad 

ti(i6-l-l. Leg. Aquil.cap.z. 

(P) I- I- «• 3. yr) l.i. (i. 4. 

(?) I. I. 5. 3. e.g. If a man, who was (/) /. i. g. 5. 

cutting a tree, fhould without calling (?) /. 9. 

out throw down a great branch of it upon («) This was not a mcer conflruflion 

one who was pafling by, and kill him, of the Romd7i lawyers, but is exprefly 

he was to be acquitted, that is to fay, provided by the law of the twelve tables, 

he was not to be proceeded againft cri- as appears from Digcjl. Lib. IX. tit. 6. 

minally by the lex Cornelia de ficariis, ; ad leg. Aqnil. I. 4. (). i. Cic. troMdovi, 

for fo IS the expreffion in /. 7. ad hims cap. 3. A. Gcll. JAV. XI. cap 18. Ma- 

legn cocrcitmicm non pert wet ; but ftiU croh. fatiirnal. Lib. I. cap 4. The reafon 

he was liable by the lex Aqiiilia to make of this diflinftion between a night-thief 

a pecuniary fatisfaflion for the damage, and a day-thief, fee in Grot, de jur. Id. 

Iiiftit. Lth.W. tit. 3. 5. 5. and tho that ac pac. Lib.W. cap. j. §. 12. 

law mentions only the cafe of killing a ^ 



Hijioria Plachoriim Coronce. 



it is lawful to kill furem noSiurnum recedentem iy fupientcm 
cum rebus, licet je non defend at telo, Jed non dmrnum, mfi fe 
defendat tela. 

The puniiliment of homicide, unlefs it were meerly ra- 
fual, among the Romans was deportatio in infulas ilf omnium 
bonorum ademptio, fed folent hodie capite puniri, ni/i honejliore 
loco pofin fuerint, ut poenam legis fujimeant ; humilmes enim 
folent 'befliis jiibjici {x) ; ahiores vera dcportamur in infulas. (yj 

Some temperaments they added in other cafes of homicide, 
as banilTiment lor five years (:^), deportation, i^c. but regu- 
larly the puniiliment of homicide, unlefs in cale of limple 
mlslbrtime (a), or defenfe of life, (/>) w as deatJi, t/;^. bejiiis 
fubjiciantur. 

Among the Saxons (c) the puniiliment of homicide was 
not always, nor for the raoft part capital ; for it mif^ht be 
redeemed by a recompenfe which went under the name of 
Wera and Weregild (d), which was a rate fet down upon the 

head 



{x) T>ig. Lib. XL VIII. tit. 19. dc 
fsuis. /. 28. §.15. 

( r) '^'S- ^^ ^^S- Cornel de /icariis, 
1.16. 

(z) /. 4. §. T. 

(«) Cod. cod. tit. l. I. 
Ih) Cod. end. tit. /. 2 £5? 3. 
(c) It fceiTis to have been tbc general 
praftice of moft of the northern nations 
to commute the'punifhment of the moll 
heinous crimes for a pecuniary mui£l. 
Lindenbrcgit Codex Leg. Jintiq. Lib. IV. 
cnp. 9(J. Tacitus, fpeaking of che antient 
Gennam fays, it was cuilomary among 
them to punilK homicide with a certain 
number of flieep and oxen, out of which 
the relations of him that was flain re- 
ceived fatistaftion. 'Tac. dc tujr. Germ, 
cap. 2t. from hence \-irobably our Snx'.<ii 
anceftors brouJiit the cuftom into 'Bn- 
taw. 

{d) This Wcregild or capitis ceftimatio, 
according to the laws of F.tbclhcrt, was 
ufually loo.f. Leg. Ethelbcrt. /. 21. tho 
in fome puticular cafes it w:'.<; more. /. 5. 
6', 22. if the (layer cfcaped,, th,e relations 
were to pay half the ordinary fj'crcgild, 

I. 2V 

Ry the laws of Tna the iVercgild was 
different accordin" to the rank and de- 



gree of the perfon Icilled, of a man worth 
2C0 .(. was 30 i^. of a man worth 6co S. 
was 80 i. of a man worth 12C0;. was 
iios. J.cg.Inec, l.-jo. This rule admit- 
ted of fome exccpriop'?. /. 54. /. 74. 

By the laws of Alfred, the bare at- 
tempt on the king's life was puniflied 
with death, unlefs the offender redeemed 
it by the payment of the king's --X'cre- 
gild ; the fame law was in cafe a flave 
attempted the life of his lord, unlefs he 
redeemed it by paying his lord's werc- 
g/ld. Leg. Alfred. I. 4. the ii-ercgtlds were 
of the fame value, as under Ina. Leg. 
Jfrcd. I. 9. /. 16. 

By the league between Alfred and 
Giithrtin, I. 2. the value of a common 
perlon was 2C0i. the fimc by the league 
between Ed-'uard and Guthrii-,i in fine. 

By the laws of Atbrlftan, whoever 
fliould attempt his lord's life, was to b« 
put to deafh j and there is no mention 
made ot any ranfom. Leg. Athelflan, I. 4. 
but at the end of his laws, and of the 
i/iidicia Civitatis LfindonieC, there is a 
particular account of the -Xfercgilds of all 
orders and degrees, from tl'.c king to the 
peafant ; for wliich fee U^ilLn'i -f f^ 
Anglo- Sax. /. (J4. /. 71. 

By 



8 Hijloria Placitorum Corona, 



head of perfons of feveral ranks ; and if any of them were 
kild, tlie offender was to make good that rate, or Weregild 
or capitis xflimatio^ to the kindred of the party flain ; or, as 
fome think, part to the king, part to the lord of the fee, and 
part to the relations of the party flain ; which if he could 
not do, he was to fuffer death (/). Vide Spelm. in Glojf. ad ver- 
ba Wera is^ Weregild. 

This cufl:om continued long, even to the time c£ Hert. t. 
here in England, as appears by his laws in libro ruhv, feB. 
ii.(f) but Ihortly after grew obfolete, as being too much 
contradictory to the divine law. (g) Vide Covarr. Tomo 2. 
Lib. II. cap. 9. fe6t. 2. 

But altho the ciiftoni of Weregild is abrogated here in Eng* 

land, and by the laws of this kingdom the punilhment of ho- 

I micide 



By the laws of Ethelrcd, I. 5. the 
'Weregild of a common perfon was in- 
creafed to 2 5 pounds. By /. 8. Giil. Covq. 
apiid Wdkins, p. lu. it was twenty 
Pounds. 

By the laws o^ Cn7tte, whoever fliould 
lie in wait for the life of the king, or 
of his lord, was to fuffcr death, and for- 
feit all he had. Leges Criuri, 1. 54. Who- 
ever committed a public notorious mur- 
der, was likewife to fuffer death with- 
out redemption ; for in 1. 61. Ceedesptiblicci 
^ doinnii proditio are reckoned amongft 
the fcelera inexpiclilia ; but it fi:ould 
fecm that common homicide was re- 
deemable ; for in /. 6. it is faid, Homi- 
cidce inclincnt^ vcl cjticndcnt, vcl fcicn- 
ter in peccatis rnorianiur. 

(f) The iceregild was ufually divided 
into three parts ; the firfl, which was 
called Frithhoie, was paid to the king 
for the lofs of his rubjcfl ; the lord 
had another for the hjfs of his man, 
which was call d Man-lotc ; and the kin 
of the Uain for their 1(j1s had the third 
part, which was call'd Mo^-lote. See 
Spelm. life oi Alfred, Tiock \\. 6. 11. in 
the caO; of killing the king, bcfidcs 
the '^vcrcgHd, which was to be paid to 
the king's relations, there was alfo an- 
other p:iyment call d eyelet or eyiicgild, 
to be made to the pubhck for the lo(s ot 
their king. 

(/; And !f. 12. fee Wilkin's leges /I'l- 
glo Sax. p. 244., But it appears fiom 



the fime laws /. 71. ihid. f. 2^7. that a 
malicious murder, by poifon or the like, 
was faBtmi mortifertmi mi Ho modo redi- 
viendiim : The genuinefs of thefe laws 
is juftly queftioncd, for that they not 
only are in the nature of commentaries 
rather than laws ; but alfo in /. 5. Gre- 
gory & decretals are cited, which were 
not compiled till fifteen years after the 
death of Hoiry I. however, they are 
allow 'd to be very anticnt, and to con- 
tain the ufages of the Anglo-Saxons. 
See IheVefu 2JiJfert. Epifi. p. 96. 

{g) It cannot but fcem llrange to us at 
this time of day, that the wilful murder 
of any one, much more of the king, 
fliould be punilhcd only with a pecu- 
niary mul^l i to folve this difficulty, 
Mr. Rapin fuppofcs that this commuta- 
tion was allow'd only in the cafe of fim- 
plc honiicide f or at moil what is now 
known by the name of manflaughter, 
but not in the cafe of a premeditated 
murder : See Rapiu's Hijloire d' Avgle- 
tcrre, T\l. I. /. 5:0. This notion is in 
it lelf reafonable, and feems to be fa- 
voured by /. 4. of Athclfian, and /. 54. 
of (hntte, which make it capital barely 
>>:Jidiari rcgi vel duhiiiw, much more to 
tuke away the lite of the king or his lord; 
but on the other hand it ieems fomewhat 
hand to fuppofe that among fo many laws 
againil homicide, they fhould all be le- 
vcird againil cafual o.- fuddcn killing on- 
ly, and fcarce any againll wilful murder.. 



Hifioria Placitorum Corouce. 



micide is regularly death (/;), as lliall hereafter be iKewn ; 
yet fince there are in England two kinds of proceedings in pii- 
niiliing of homicide, the one at the fuit of the heir or wife 
by appeal, the other at the fuit of the king by indi£lment, 
the capital puniiliment of the offender may be difcharged by 
all parties interefted, namely by the appellant by releafe, and 
by the king by his pardon. 

And thus far touching the puniiliment of homicide. 
Now I ihall coniider fomewhat alfo of the puniiliment of 
theft, and the various laws and ufages concerning the fame 
in feveral kingdoms and ftates, and at different times in the 
fame ilate or kingdom. 

By the JewiJJj law, Exod. xxii. 1,4. If a man fieal an ox 
or a JJjeep, and fell or kill it, be fljall reflore jive oxen for an 
ox, and four fJjeep for a JJjeep : If the theft be found in his 
hands alive, whether ox, afs or fieep, he fJjall reflore double ; 
and the like for other goods {i) ; fo that there was no capital 
puniiliment in cafe of theft, tho it were accompanied with 
burglary, as breaking a houfe, (but men-ftealers were puniihed 
with death {k) ; but it feems by the civil conftitutions of that 
ftate the puniiliment thereof was iometimes enhanied, at leall 
in fome circumftances, fometimes to a feven-fjld reftitution, 
Prov. vi. 31. and alfo to death. 2 Sam. xil. 5. (/) 

Now as to the Attic laws : Samuel Petit de Legibus Atticis, 
Lib.Yll. tit. 5. gives us an account of their laws concerning 
theft, in fome things differing, in fome things agreeing with 
the JewiP) laws, furdm cujujamque modi furti fupplicio capitis 

D punitor. 

(Z') The offendet is to be hanged by (/) This paflage from the book of .S"/?- 

the neck till he be dead ; and in cafe mud does by no means prove what It 

he was coiividied on an appeal, the an- is brought for, viz. that theft was pu- 

tient ufage was, that all the relations of nifliable with death by the ^eivip law ; 

the flain fhould drag him with a long for the cafe there put of taking away a 

rope to the place of execution. 3 Co. Infl. poor man's lamb, was attended with vio- 

131. 'Plo-x^d. '2,o6.b. II Hen. ^. 11. a. lence and other aggravating circum- 

(/) Exod. xxii. 7, 9. The reafon why Itances, which provok'd king 'David to 

the reftitution of an ox was more than fay, Tkc man that hath done this JhaU 

of a /Keep is fuppofed by Maimonides furely die ; and fome render the words, 

7)iore Nevochim 'Par. III. cap. ^.i. to Does deferve to die ; but at moft it only 

be, becanfc fheep are more eafily guard- proves the vehemence of Davi.'Cs anger 

ed againil tliieves than oxen, who feed at the man, and not what was the law 

at a greater dillance one from another. of the Ifraelites. 

\k) E-vod. x\\. 16. 



lO Hi fi or ill P lac It ovum Corona, 

pimito. This was Draco's law ; but it was thought too fe- 
vere, and therefore Sohn correfted it (m). Si furtum faEium 
fit, ^ quod furto perierat reccperit dominus, dupUone luito fur- 
tum qui fecit isf qtwrum ope confilioque fecit ; decuplione vindica- 
tor, ni dominus rem furtivam rcceperit, in nervo quoque habetor 
dies ipfos quinque totidemque tioBes, fi hcliiifl.i; protmnciurint ; 
prommcianto autcm, cum de poena lUius agitur. 

Si lucri furtum cujus dflimatio fit fupra 50 drachmas faxit, 
ad undecim viros rapitor ', fi nox furtum faxit, fi im aliquis oc- 
cifit, jure c^fus efto: — Manifefium hujuj modi furtum qui fax it , 
ctiamfi vades dederit, non noX'C faB'C farcitione, fed morte luito. 
Si quis item ex aliquo gymnafio veflis aut lecythi aut alicujus vel 
minimce rei, aut fupelle^ilis e gymnafio, aut ex balineo, aut e por- 
tubus, quod excedat i o drachmarum ccftimationem, furtum faxit, 
morte luito. 

Manifefli faccularii (n) morte luunto. 

VeBicularii(o) manifefli morte luunto. 

Plagiarii (p) manijefii morte luunto. 

In hortos irrumperc ficojque deligere capital eflo (q): So that 
the quantity of the thing Itolen, the place, the ieafon, the 
manner, and other circiimllances heightened theft into a ca- 
pital punilhiment, that otherwife by Solon's laws was only pe- 
cuniary and impriionmcnt. (r) 

2 Now 

(;A) See A Grll/mn, Lil. XI. cap. iS. lirft. in Arifiothaiih Thittun ad -y. 31. SS? 

£r 'Tim arch, in Vita Sclciis. 874. 

(«j v,ahcLVTi!.T:>uia\\ A cut-purfe. (r) Among the Lacedccmo7iians all 

(0) 1<"/:^'?">^"'', A houfe-breakcr. miinner of theft was permitted, as a 

{p) 'Ai/pa.TScT'a'o'iueec,-, Srjc 'Flagia- pnictice, which tended to inftrudl their 

ritiSy is ffti qui /i-iie vi^ rlolo n7i'.lo, fcicns youth in the {Iratagcms of wur. j^. Gel. 

/tl'dt'ici( hoiriiiics.lilcros iS i'ligcmtos, ven- Lil. XI. cap. 18. It was alfo unpunifh- 

ditqti? pro fcrvis, aut fiippriir/it : vel is ed among the antlent l'gyptia?!S. A. Gel. 

eji, qui iiliei20S fervos ahdiicit fhie vi, i^ tit'i fuprn. But we learn from fO/c/j'or. 

plerujiique /tne furto, i^ fug^J'i pcrfaa- Sic. Lib. \. that it was allow'd only on 

dct, aut jiigitirjos eclat. Petit. Commciit. certain conditions, for it was provided by 

ad Lib. VII. tir. 5. dc fLftis. a law, that whoever was minded to fol- 

(i/J But this was a temporary law, low the trade of thieving, Aiould firit 

made in a time of dearth, when it enter his name with the captain of the 

was thought reccflary to prohibit the gang, and /hould bring in all his booty 

exportatioTi of Figs. However, profecu- to him, that fo the right owner might 

tions of oft'cnders aga nil: this law loon know where to apply for the recovery 

grew odious ; from hence all malicious of his goods, which were reilored to 

informers were called Syccphavts. Vide him on paying the quarter of the Va- 

AihcU(£i\Dcipnojophifi. Lib.\\\. 'i5 Scho- lue. 



Hijloria Placitorum Cor once. ii 

Now as to the Roman laws : For a theft, that was not /«r- 
tum manifeflum^ there is given a5iio in duplum j but if it were 
furtiim manifefium, aSlio in quadriiplum (f) ; furtum autem ma- 
nifeftum efi, cum fur deprehenditur in furto. (t) 

But now as to punilhments among the Romans, there were 
thefe degrees or orders : I. Capital punilhments, (vi^. ulti- 
mum jupplicium) (u) which were i . Damnatio ad fun am. 2. Vivi 
crematio. 3. Capitis amputatio. 4. Damnatio ad feras, II. O- 
thers, that were in the next degree, were i. Coercitio ad me- 
talk. 2. Deportatio ad infulas. III. Others again of a lower 
allay were i. Relegatio ad tem^pus vel in perpetuum. i.Datio 
in publicum opus. 3 . Fufligatio. {x) 

I find not among the Romans any greater puniiliment of 
theft, than four-fold reftitution f^;'), unleis in thele cafes: 

1. Si quis ex metallo principis vel ex monetd facrd furatus 
efi, poena metalli iff exilii punitor. (^) 

2. Grajfatores qui cum ferro aggredi isf fpoliare inflitnunt, 
capite puniuntor. (a) 

3. Famofi latrones ad beflias vel fur c as damnantor. Digefl. de 
pccnis. (b) 

If we come to the laws and cuftoms of our own kingdom, 
we ihall find the puniiliment of theft in feveral ages to vary 
according as the oftenfe grew and prevailed more or lefs. {c) 

Among 

(/) Ii?fi. Lih. IV. til. n. 5. 5. 2)gr/: {x) Dig. cod. tit. I. 28. /r. $. i. /. ir. 

Lib. XLVII. tit. z. de fnrtis, I. 46'. §. 5. 

f 2. herein the Roman law greatly re- {y\ So far were the Romani from in- 

fembled the jfe-i'tfJ.^ with this diffe- fliiEling capital puninimcnts for theft, that 

rence, that by the Je-zviJJj law the puiiifli- on the contrary it was exprelly forbidden 

ment of fourfold was to be infk-ad of re- by ynfiinian, that any perfon /hould be 

fiitution j whereas by the Rvmnn law put to death, or fuftcr the lofs of mem- 

thc thing flolcn was recoverable over ber for theft. Novel CXXXIV. caf. 

and above the pxna quadru^li. Dig. vlt. 
ecd. tit. I. 54. 6. q. (a) Dig. Lih. XLVIII. tir. n. ad leg. 

(r) Dig. cod. 'tit. I. z. I. y. pr. By this ynl. pcaibtih, 1.6. 6. z. Ltl. XLVllL 

was meant not only if he was taken in tit. 19. de p(x',iis, I. 58. 
the Faft, but alfo if he was apprehended {a) Dig. eod. tit. I. 28. %. 10. 
with the goods upon him before he had ih) Dig. eod. tit. I. 28. 6. i 5. 
carried them to tlie place, where they (c) By the laws of Ethcllert, if ore 

were to remain that night, and anfwers man flole any thing from another, he 

to the cxprcfllon in our law of being ta- was to reflore three-fold befides a fine to 

ken in the iromoiivre. the king, /. 9. if he ilole any thing from 

{u)Dig.Lil.'K.IjNll\.tit.i9. de px- the king, he was to reftore nine-fold, 

«i5, /. 21. l-\- _ 

By 



12. 



Hiftoria Placitorum Corona. 



AmoiiCT the laws of king Athelfian, mentioned by Bramp- 
ton, p. 849, ^52, 854. Non parcatur aliciii latroni fupra 12 
annos i5f fi(pra \ z d. quin occidatur {d)^ Edmund his fucceflor % 
pr^cepit ne infra i 5 annos, vel pro latrocinio infra 11 d. occi- 
idatur, nifi fugerit^ vel fe defender it : Malmshury tells us, that 
in the time of William I. theft was piiniilied with caftration, 
and lofs of eyes {e) ; but in the time of Henry I. the an- 
tient law, which continues to this day, was ut Jiquis in furto 
vel latrocinio de prehenfus fuerit-, fufpenderetur. (/) 

And altho many of the fchoolmen and tanonifts are of 
opinion that death ought not to be inflidled for theft {£), 

yet 



By the laws of Ina a thief was pu- 
niOied with death, un'.efs he redeemed 
his \ik capitis teftl?>2atioi!e, I. 12. which 
was 60s. I. 7. but if a villain, who had 
been often accufed, fhould be taken in 
a theft, he was to have an hand or foot 
cut off, /. 18. 

By the laws of Alfred whoever flole 
a mare with the foal, or a cow with the 
calf, was to pay 40 s. befides the price 
of the mare or cow, /. 16. Whoever 
ftole any thing out of a church, was to 
pay the value, and a fine according to the 
value j and alfo was to have that hand cut 
off, which committed the fift, /. 6. If 
any peribn committed a theft die 1)omi- 
nico, or any other great fcftival, he was 
to pay double, /. 5. 

{d) By the firft law of Athclftnn it was 
but 8 d. IFdk/ns leges yJnglo-Sax. p. 56. 
but afterwards by the laws of the fame 
Icing enabled at London^ and thence cald 
judicia civitatis Ltmdovitf, no one was 
to be put to death for a theft under 12 d. 
Jhtd. p. 6^. But in cafe the thief fled 
or made refiltance, then he might be 
put to death, tho It were under that va- 
lue. Il^id. p. 70. By the law of Cmuc theft 
was punifhed with death. Ilid.p.i-^^. 
/. 4. and /. 145. /. 61. 

(*) This is a miflake, for no fuch law 
is found among the laws of that king, 
but it is among the later laws ot king 
yirbclftan. Vide Jiidicia Civ. Lond. 
Wiik. leg. Jiiglo-Snx. /. 70. 

c) By the laws of IViUinm I. it was 
exprefly prohibited, that any fhould be 
hanged or put to death for any offenfe, 
b'jr that hif eyes fliould be puld out, his 
kli'cles, hands or feet cut off, accord- 
2 



ing to the degree of his crime, /, 6-j. 
cpud Wilkins leg. Jitglo-Sax. p. 229. 
/. ; 1 8. 

(/) In former times, tho the puni/h- 
ment of theft was capital, yet the crimi- 
nal was permitted to redeem his life by 
a pecuniary ranfom 3 but in the 9th Year 
of Henry I. it was enafted, that who- 
ever was convifted of theft (or any o- 
ther felony. 3 Co. Lijlit. 53.) fhould be 
hanged, and the liberty of redemption 
was entirely taken away. Wilk. leg. Aii- 
glo-Sax. p. 504. This law ftill remains 
at this day ; but confidering the altera- 
tion in the value of money, the feve- 
rity of it is much greater now than 
then, for 11 d. would then purchafe as 
much as 40^. will now ; and yet a theft 
above the value of iz d. is ftill liable to 
the fame puniflTmenr, upon which Sir 
Hen. Spelman juftly obferves, that while 
all things clfe have rofe in their value 
and grown dearer, the life of man Is be- 
come much cheaper. Spelrn. in verho la- 
ricinium ; from hence that learned au- 
thor takes occafion to wifl:, that the an- 
ticnt tenderncfs of life were again re- 
florcd, Jvftiini eerte efl, lit collapfa legis 
ecquitas rejlaiiretnr, isi ut divi}2ce itna- 
ginis vehicidnm, quod fitpericres pr idem 
tetatcs oh gravijjma crimiva veqiiaquafn 
tcllerent, Icviorihus hodic ex delidis no?i 
perderettir. 

(g) Scot u s Sent ent. 4. difliiiEl. 154. 
qutej}. 3. Sylvcjler if! verhofurtitm 5. Not 
only the fchoolmen and canonifts were of 
this opinion, but by what has been above 
faid it appears likewife to have been the 
fcnfe both of the Jcivifh and Roman 
hws; and rho, as our author fays, the 

prin- 



Hijtoria Placitorum Corona. i ^ 



yet the neceffity of the peace and v/ell ordering of the king- 
dom hath in all ages and ahnoft all countries prevailed againR 
that opinion, and annexed death as the punilhment of their, 
when the oftenfe hath grown very common and accomp:inied 
with enormous circumllances, tho in fome places more is kft 
herein to the Arbitrium Judicu to give the fame or a more 
gentle fentence according to the quality of the offenfe and 
offender, than is ufed in England^ where the laws are more 
determinate, and leave as little as may be to the Arhitrium 
Judicii. See the cafe difputed learnedly by Covarruvids Tamo i. 
Lib. 11. cap. 9' ^'1' 

This I have therefore mentioned, that it may appear, that 
capital puniihments are varioufly appointed for ieveral ofFenies 
in all kingdoms and ffates, and there is a neceffity it ihould be 
fo, for regularly the true, or at leaff, the principal end of pu- 
niihments is to deter men from the breach of law*s, fo that they 
may not offend, and fo not fuffer at all, and the inlli£ling of 
puniihments in moft cafes is more for example and to prevent 
evils, than to punilh. When ofienies grow enormous, frequent 
and dangerous to a kingdom or ftate, deffrudliv^e or highly 
pernicious to civil focieties, and to the great infecurity and 
danger of the kingdom and its inhabitants, fevere punifh- 
ments, even death it felf, is neceifary to be annexed to laws in 
many cafes by the prudence of la\\'-givers, tho poilibly be}'or.d 
the iingle demerit of the oftenfe it lelf limply coniider'd. 

Penalties therefore regularly ieem to be ^uris pqfitivi, iff 
non naturalis, as to their degrees and applications, and there- 
fore in different a^^es and ftates have been let higher or loWet 
according to the exigence of the ftate and wildom of the 
law-giver. Only in the cafe of murder there feems to be a 
juftice of retaliation, if not ex lege naturally yet at leaft by 
a general divine law given to all mankind. Gen. ix. 6. and ai- 
tho I do not deny but the fupreme king of the world may 

E remit 

principal end of puni/hment is to cleter renim reliqttarnm ; an<l again Lib. I. /{e 

men from offending, yet it will not fol- officiis. Eft cnim iilcifcendi £S? puiiicvdi 

low from thence, that it is lawful to de- modus. Befides experience might teach 

tcr them at any rate, and by any means; us, that capital puniihments do not al- 

for even obedience to juft laws may be ways beft anfwer that end. See Grot. 

inforced by unlawful methods. Cic. Ejift. de yur. hd: £5c. Lil. II. cap, io. >j. la, 

i^. ad Srutum. Eft ^(S7i<£ modus, Jkut n. 3. 



14 Hi ft or i a PI act tor urn Coron£. 

remit the feverity of the pimlfliment, as he did to Cain^ yea 
and his ilibftitutes ibvereign princes may alfo defer or remit 
that punilliment, or make a commutation of it upon ureat 
and weighty circumftances, yet fuch inll:ances ought to be 
very rare, and upon great occafions. 

In other cafes the lex talionU in point of punilhments 
feems to be purely ]urii pofitivi ', and altho among the Jervijh 
laws we find it inll:ituted Exod. xxi. 24, 2 5. Eye fw eye, tooth 
for tooth., hand for hand, foot for footy burning for kirning, 
wound for wound, flripe for flripe ; yet in as much as the 
party injur'd is living and capable of another fatisfadion of 
his damage, (which he is not in cafe of murder) I have heard 
men greatly read in the JewiJJ} lawyers and laws affirm, that 
thefe taliones among the Jews were converted into pecuniary 
rates and eftimates to the party injured, fo that in penal pro- 
ceedings the rate or eftimate of the lofs of an eye, tooth, 
hand or foot was allowed to the perfon injur'd, vi-z;^. the price 
of an eye for an eye, and the price of an hand for an 
hand, ^c. (h) 



(h) Maimonidcs More Ncvochim, Tars III. cap. 



41. 



CHAP. IL 

Concerning the fe-veral incapacities of per- 
fons, and their exemptions from penalties 
by reafon thereof, 

IV/f AN is naturally endowed with thefe two great facul- 
^ -*• tics, underftanding and liberty of will, and there- 
fore is a fubje6l properly capable of a law properly fo called, 
and confequently obnoxious to guilt and punilhment for the 
violation of that law, which in refpeil of thefe two great 
faculties he hath a capacity to obey: The confent of the will 
I is 



Hi (tori a Placitorum CoroUi^, \^ 



is that, which renders human aflions either commendable or 
culpable; as where there is no law, there is no tranigreilion, 
io regularly, where there is no V'ill to commit an oftenie, 
there can be no tranigrelhon, or jull: real'on to incur the pe^ 
nalty or fan£l:ion of that law inltituted for the punilhment of 
crimes or offenfes. And becauie the liberty or choice of the 
will prefuppofeth an dBi of the iinderftanding to know the 
thing or a^lion chofen by the will, it follows that, where 
there is a total defe6l of the underftanding, there is no free 
a6l of the wall in the choice of things or aftions. But ge- 
neral notions or rules are too extravagant and undetermi- 
nate, and cannot be fafely in their latitude applied to all civil 
aftions J and therefore it hath been always the wifdom of 
ftates and law-givers to prefer I be limits and bounds to thefe 
general notions, and to define what perfons and aftions are 
exempt from the feverity of the general puniiliments of penal 
laws in refpefl; of their incapacity or defe£l of" will. 

Thofe incapacities, or defeats, that the laws, efpecially the 
laws of England-, take notice of to this purpofe, are of three 
kinds : 

i. Natural. 

II. Accidental. 

III. Civil incapacities or defers* 

The natural is that of Infancy. 
The accidental defers are, 

1. Dementia. 

2. Cafualty, or Chance. 
5. Ignorance. 

The civil defe£ls are, 

1 . Civil Subjection. 

2. Compulfion. 

3. NeceJJity. 

4. Fear. 

Ordinarily none of thefe do excufe thofe perfons, that are 
under them, from civil a6lions to have a pecuniary recom- 

penie 



l6 Hi ft or i a Placltorum Cor once. 

penfe for injm-ies done, as trefpajjes, batte^-'ies^ rpoimdmgs; 
becaiife fuch a recompenfe is not by way of penalty, but a 
fatlsfadlion for damage done to the party : but in cafes of 
crimes and mildemeanors, where the proceedings againil: 
them is ad poenam, the law in fome cafes, and under certain 
temperaments takes notice of thefe defeats, and in relpe6l of 
them relaxeth or abateth the feverity of their punilhments. 



CHAP. III. 

Touching the defeB of infancy and nonage. 

I H E laws of England have no dependence upon the civil 
-*- law, nor are governed by it, but are binding by their 
own authority ; yet it mull: be confelTed, the civil laws are 
very wife and well compofed laws, and fuch as have been 
found out and lettled by wife princes and law-givers, and 
obtain much in many other kingdoms fo far as they are not 
altered abrogated or corrected by the fpecial laws or cu-- 
ftoms of thole kingdoms, and therefore may be of great ufe 
to be known, tho they are not to be made the rules of our 
EnglijJj laws ; and therefore tho I lliall in fome places of this 
book, and here particularly, mention them, yet neither I, 
nor any elle may lay any weight or ftrels upon them, either 
ior diicovery or expofition of the laws of England^ farther 
than by the cullioms of England or A(3:s of Parliament they 
are here admitted. 

As to this bufinefs touching infancy, and how far they are 
capable of the guilt or punilTiment for crimes : I will conli-- 
der, I. What the civil laws tell us concerning the fame. 
2. What the common laws of England have ordained touch- 
ing it, and wherein thele agree^ and wherein they differ 



touching this matter. 



The 



Hiflorla Placitorum Corouce. 17 

The Civil law diftinguillieth the ages into feveral periods 
as to feveral purpofes. 

ivr/?, The complete fiill age as to matters of contrail is 
according to their law twenty-five years {a), but according to 
the law of England twenty-one years. (/>) 

Secondly^ But yet before that age, ^7':^. at feventeen years^ 
a man is faid to be of full age to be a procurator {c\ or an 
executor {d) ; and with that alfo our law agrees. 5 Co. Rep. 
Plot's cafe, (e) 

Thirdly, As to matrimonial contra£ls the full age of con- 
fent in males is fourteen years, and of females twelve (/) ; 
till that age they are faid to be impuberes (g\ and are not 
bound by matrimonial contracts ; and with this alfo our law 
agrees, {h) 

Fourthly, As to matter of crimes and criminal punilli- 
ments, efpecially that of death, they diftinguiili the ages 
into thefe four ranks. 

1 . Mtas pubertatis plena. 

2. ^tas pubertatis. 

3. j^tas pubertati proxima. 

4. Infant i a. 

I . Vubertas plena is eighteen years. (/') 

2. Piiber' 

(a) Inftitut. Lib. I. tit. 25. 'DcCurato- tit. 6. de vtilg. £i? //////. fulflittit. I. 1. 

rihus. 'Ifig. Lil.lY. tit. 4. de Miiiori- Macroh. Saturn. Lib.^il. cap, 1. 

lus, I. I. iSc (h) Co. Lit. 9.104. At the fame age they 

{I) LJt. 5. 104. Co. LAt. %. 103. were permitted by the civil law to make 

[c) liijlitut. Lih. I. tit. 6. ^tibm ex a teftament. !L)/geJl. Lib. XXVIII. tit. t. 

caufii mamnnittere ncn licet., ^^. 5 ^ 7. ^li te_(lnwenta faccrc pojjimt, l.-j. lufti- 

'Dig.Lib.Wl. tit.i. 2)e'Pofia/.i?ido,l.i. tut. L:b.\\. tit.ii. J^iibus non eft per- 

§. 3. At this age it was the cuftom a- iniffum facere tcftiimentzim, §. i. Cod. 

mong the Remans to lay afide the ha- 'Lib. VI. tit. 22. ^li teftamenta facere 

bits of children, and put on the gar- pojfiiit, vel 11017, I. 4. The common law 

mcnts of men. yat. Max. Lil>.N. cap. 4.. fcems not to have determined precifely 

§. 4. Sucton. ,'Juguft. cap: 8. at what age one may make a teftament 

(,d) See Swiiib. of wills, par. V. §. z. of a pcrfonal eftate, it is generally al- 

«. 6. lowd that it may be made at the age of 

(e It is quoted in Prince's cafe, 5 Co. eighteen. Office of F.xeciitors, p. 305. Co. 

Rep. 19. b. Office of Executors, />. 307. Lit.%^. I. and feme fay under, for the 

(f) I/?ftit. L.ib. I. tit. 10. de nuptiis common law will not prohibit the fpiri- 
fr. ijig. Lib. XXIII. tit. 2. de ritu nup- tual court in fuch cafes. Sir L'ho. Jones^ 
tiarum, /. 4. Rep. 210. i /"ir;;, 255. z Vern. :^6<). 

(g) I::ftnvt. Lib.l.tit.iz. ^ibus >rio- (i) 'Dig. Lib. I. tit. 1. do adoption. 
dii tutclafinuur.pr. 2)!g. Z.-Z'^X Vlll. /. 40. 'l 1. liftii, cod. (it. '5. 4. 2)ig. Lib. 

P XLII, 



1 8 Hifloria Placitorum Coronae. 



2. Pubertas generally, in relation to crimes and puniili- 
ments is the age of fourteen years and not before (k) ; and 
it feems, as to this purpole there is no difference between 
the male and female lex ; at this age they are fiippofed to be 
doli capaces, and thereiore for crimes, altho capital, commit- 
ted after this age they lliali fufter as perlons of full age (/), 
only by the conftitutions of lome kingdoms, in favour of 
their age, the ordinary pi.iniiliments were not inflicted upon 
fiich young oftenders ; as in Spain, not unleis he were of the 
age of feventeen years. Vide Covar. de Matrimonio, cap. $. 
§. 8. (m) In Rele^ione ad Clement, cap. Si furiofus (n). By the 
antient law among the 'Jen^s, he that was but a day above 
thirteen years, was as to criminals adjudged in virili fiatu, 
but not if under that age. (f) 

3. yEtas puhertati proxima, herein there is great diffe- 
rence among the Roman la\\^yers ; and tho they make a dif- 
parity herein between males and females, yet I think as to 
point of crimes the meaiure is the fame for both : Some af- 
lign this Mtas puhertati proxima to ten years and an half; 
others to eleven years {0) : If they be under the age, which 
they call ^tas puhertati proxima, they are prefumed incapaces 
doll (p), and therefore regularly not liable to a capital pu- 
nilhment for a capital oflenie ; but this holds not always 
true, for according to the opinion of very learned civilians 
before ten years and a half they may be doli capaces, and there- 
fore it muif be left ad arhitrium pidicis upon the circumftances 
of the cafe, yet with this caution, Judex, qui ante illam ^tatem 
arhitrari dehet puerum effe proximum puhertati, maximis adducen- 
diis eft conjefturu, i^f cautijjime id aget, ac tandem rare. Covarr. 
uhi Jupra (q). And with this agrees our h\v, as Ihall be 

Ihevved. 

XLII. tif. I. Je rcjitdicat. /. 57. Lib. (X) Seld. de SyncdriiSi LihAl. cap.\%. 

XXXIV. tit. I. 1)c al'menw^ /. 14. §.192. 

§. I. (&) The prevailing opinion Is that the 

(]i) 1)'ig. Lih. XXIX. tit. 5. dc Sena- males are puhertati ^'roximi at ten and 

tufcojifutto Sibmaiio, i^c. I. i. §. 51. an half, and the females at nine and an 

(I) 'Dig. Lil. IV. tir. 4.. de }iii)icrih!is^ half, bccaufe when they had pafs'd the 

/. 57. §. I. Lib. XL\'III. tir. 5. ad leg. middle dlllance between infancy and pu- 

y/.'/. de adult. I. '6. Ccd. Lib. 2. tit, 3j. berty, they might then be properly faid 

Si adverfui deliEliivi, I. i. to be cetatis pnlertnti proximte. 

(in) Toin. I. /. 1.57. C/) 'Dig. Lib. XLVII. tit. 12. de fe- 

QiJ Tar. Ill §. 5. '/iw. r. />. 558. pilcbro violate. I. 3. §. i. 



2 



(^q)T'cr,2.i.^. 1 57. 



Hi ft or i a P lac it or urn Corona. 19 

lliewed. But if the oft'ender be in <etate ptibertati proxima^ 
vi^. according to lome, ten years and an half, according to 
others elev^en years old, he is more ealily prelumed to bs 
doli capax, and therefore may fuffer as another man, iinlefs 
by great circumftances it appear, that he is incapax doli. But 
this hath aifo its temperaments, i . By exprefs provihon of the 
conftitution in Codice De falp Monetd : " Impubcres, fi confcii 
*' fuerint, nullum fufiineant detrimentum, quia cetas eorum, quid 
" z-ideat, ignorat " ; but a penalty is laid upon the tutor, (r) 

2. Tho <€tas pubcrtati proxima IS regularly prefumed C^^;c 

doli, and fo may be guilty of a capital oftenfe. Digefi. De rc' 

gulis juris {j). Pupilhmy quiproximus efi pubertati, capacem ejfe 

furandi, yet as it is in arbritio judicu to judge an infant 

within ten years and an half capax doli, as before ; fo It is in 

arbitrio judicis upon coniideration of circumitance to judge 

one above ten years and a half, nay of twelve, thirteen 

years, or but a day within fourteen years, to be incapax do- 

a, and fo privileged from puniiliment, as appearing upon the 

circumftances of the fafl: not yet conJlitutM in <etate -proximo. 

pubertati, or at leaft not doli capax; and with this our law 

doth in a great mealure agree. 

3. lliat if he be above ten years and a half, and appears 
doli capax, yet if under fourteen years, he is not to be pu- 
nillied pxni ordinarii, but it may have fome relaxation ex ar- 
bitrio judicM. (t) But altho our law indulges a power to the 
judge to reprieve before or after judgment an infant convi£l 
of a capital oft'enie in order to the king's pardon, yet it al- 
lows no arbitrary power to the judge to change the punifh- 
ment that the law inflitls : and thus far for the third age or 
period, /Stas pubcrtati proxima. 

4. The fourth age or period is infantia, which lafts till fe- 
ven years ; within this age there can be no guilt of a capital 
offenle ; the infant may be chai'lized by his parents or tutors, 
but cannot be capitally puniihed, becauie he cannot be guil- 
ty («) ; 

(y) Lil/.IX. tif.z^. I. I. /fe ohligat. que ex HeliElo, $. i8. 2)/g. 

(f) Lib. L. tit. 17. /. III. Lib. XXIX. Lib. XLVIl. tit. 2. de furth, l.i%. 
tit. 5. de Senc.tiijcoufultu Silamano., I. 14.. '{t} 'Dig. Lib. IV. tit. 4. de minor ilus^ 

L.ib. XLIV. rjV. 4. de doli 7i/ali ex- I. ^-.^. I/j dtiitlis. 
ce£tioi2e, I. 4. 5. z6. Inltit. Lib. IV. tit. i. 



20 Hiftoria Placitorum Corona, 



ty («) ; and if indifted for fiich an ofFenfe as is in its nature 
capital, he miift be acquitted ; and therefore the leverity of 
the glofs upon the decretal De dcliclis puero}-im, cap. i . (x) is 
jiiftly rejefted in this cafe (j)'), and with this agrees the law 
of England. 

But now let us confider the laws of England more particu- 
larly touching the privilege of infancy in relation to crimes 
and their punilhments, and that in relation to two kinds of 
crimes, i. fuch as are not capital, 2. fuch as are capital. 

Firft, As to mildemeanors and ofFenies that are not capi- 
tal ; in fome cafes an infant is privileged by his nonage, and 
herein the privilege is all one, whether he be above the age 
of fourteen years or under, if he be under one and twenty- 
years ; but yet with thefe differences : 

If an infant under the age of twenty-one years be indicled 
of any mifdemeanor, as a riot or battery ^ he Ihall not be pri- 
vileged barely by reafon that he is under twenty-one years, 
but if" he be convicted thereof by due trial, he Ihall be fined 
and imprifoned ; and the reafon is, becaule upon his trial the 
court ex officio ought to coniider and examine the circum* 
ftances of the fa£l, whether he was doli capaXy and had dif- 
cretion to do the ad wherewith he is charj^ed ; and the fame 
law is of a feme covert. 2. But if the offenfe charged by the 
indi£lment be a mere non-feafance, (unlefs it be of Inch a 
thing as he is bound to by reafon of tenure, or the like, as 
to repair a bridge, iifc.) (^) there in fome cafes he fliall be 
privileged by his nonage, if under twenty-one, tho above four- 
teen years, becaufe Laches in fuch a caie ihall not be impu- 
ted to him (a). 

36 E. 3. j4Jfif. 443. 4 H 7. I I. If. If an infant in J/Jife 
vouch a record, and fail at the day, he ihall not be impri- 
foned (/»), nor it feems a feme covert, i 3 Affif 1 . (c) and yet 
thQ ikiituie oilVe/lminfl. 2. cap. 25. that gives imprifonment, 
in fuch a cafe, is general. 

2 2 E.2, 

(u) T>ig. Lib. XLVII. th. 2. dc fur- fa; 2 Co. L2JI. 703. 

//■;, /. 25. ZzZ'. XLVIir. r/V. 8. ad kg. (a) S. Saver default, 50. Cro. ^ac. 
Cornel, dc ficari IS, l.ii. ^6'), t^66. 'Pl.Co}?2.^6^.a. Co.Lir. i^6.l>, 

C.r) "Decretal. Lib. V. tit. i^. (bj z Co. Influ. 414. 

(y) Tom. I. /. 1)7. (c) S. Coverture 3 j. Rrfceit 87. 



Hifloria Placitorum Cor once. 21 

^ E. 2. Cor one 395. Vi A. kills B. and C. i^ D. are pre- 
fent, and do not attach (d) the offender, they Ihall be fined 
or imprifoned ; yet if C. were within the age of twenty-one 
years, he Ifiall not be fined nor impriioned. 

3. Where the corporal punilhment k but collateral, and 
not the dire6l intention oi the proceeding againft the infant 
tor his mifdemeanor, there in many cafes the infant under 
the age of twenty-one Ihall be fpared, tho poiTibly the pu- 
nillmient be enabled by parliament. 1 4 Ajf. 1 1 . (e) If an in- 
£-int of the age of eighteen years be convi£l: of a diffeifin 
with force, yet he fiiall not be imprifoned. Fide 16 Ajf. 9. 
43 £. 3. hnprijonment 16. 40 £. 3.44. ,^.(/), and yet a 
feme covert Ihall be imprifoned in fuch cafe. 16 Ajf. 7. 

If an infant be convi£l in an a£lion of trefpafs vi isf armlf^ 
the entry muft be nihil de fine, fed pardonattcr, quia infans ; 
for if a capiatur be entred againft him, it is error, for it ap- 
pears judicially to the court, that he was within age, when hs 
appears by guardian. P. 8 Jac. B. R. Holbrooke v. Dogley, Croke 
n. 3. (g) ; the like law is that he ih.all not be in mifericordia 
pro falfo clamore. (h) 

B. Coverture 68. General ftatutes that give corpoml pu* 
nilhment are not to extend to infants, and therefore PL Com. 
■2^6^. a. per Wal/h, if an infant be convi£t iii ravilliment of 
ward, he lh,all not be imprifoned, tho the ftatute o£ Merton^ 
cap. 6. be general in that caie (i) : but this muft be under^' 
Ifood where it is, as before laid, a puniihinent as it were col- 
lateral to the oftenfe, as in the caies before mentioned: but 
where a hS: is made felony or trealon, it extends as well to 

G infants 

(d) *rhe words of the book are ne leve ^oxihxcA of it ; an<1 in 17 E. 5. 75. t. and 
ie main d'artach. 41 Alftf. 14. the plaintiffs, tho infants, were 

(e) F. Jmprifonment 8. amerced pro falfo clamore ; but tho they 
(/) '^ Et le caufe eft, pur ceo que la were amerced, yet it appears from the 

*' ley entend', que un enfant ne poit my fame cafes, that they were intitled on ac» 

*' conuftr' bien & mal', ne le quel foit count of their infancy to a pardon of 

" advantage pur luy, ou ncmy ; ne rul courfe. See i R. A. 214. 

" foly ferra adjudge en un enfant." Mes (i) Another like cafe is there put, if 

11 H. 4. 22. b. Hank dit, que enfant an infant be a receiver and account be- 

d'age de 18 ans pott eftre difleifor ove- fore auditors, and be found in arrears, 

force & eftre emprifon per cella. the auditors cannot commit him to pri- 

(g) Cro. yac. 274. fon notwithftanding the general words of 

(/-') Co. Lit. 127. a. yet this was not a the ftatute oiW.%. caf. 11. 
fettled point, for 3. E. 3. 5. the court 



ZZ Hip or i a Placitorum Corona. 

infants, if above fourteen years (A), as to others, as fhall he 
faid. And this appears by feveral afls of parliament, arid 
particularly by i Jdc. cap. 1 1 . of felony for marrying two wives, 
&c. where there is a fpecial exception of marriages within the 
age of confent, which in females is twelve, in males fourteen 
years ; fo that if the marriage were above the age of confent, 
tho within the age of twenty-one years, it is not exempted 
from the penalty. 

So by the flatute of 2 1 H. 8. cap. 7. concerning felony by 
fervants that imbe^^jl their maflers goods delivered to them, 
there is a fpecial provifo, that it ihall not extend to fervants 
under the age of eighteen years, \\'ho certainly had been 
within the penalty, if above the age of difcretion, ^7;^. four- 
teen years, tho under eighteen years, unlefs a fpecial provi- 
iion had been to exclude them (/). 

I come therefore to confider the privilege of infancy in 
cafes of capital ofFenfes and puniiliments according to the 
laws of England, wherein I Ihall examine, i . How the antient 
law flood. 2. How it ftands at this day in relation to in- 
fants. 

I. As to the antient la\^'- ; 

I. By what has been before faid it appears the Civil law 
was very uncertain in defining w^hat was that ^tas pubertati 
proxima, and confequently fuch as might fiibjeft the offen- 
der to capital guilt or punilhment ; fome taking it to be ten 
years and an half, fome eleven years, others more, others lefs. 
The laws of England therefore, that always affe£l certainty, 
determined antiently the £tas pitbertati proxima to be twelve 
years for both fexes ; undev t^bat age none could be regularly 
guilty of a capital offenle, and above that age and under four- 
teen years, he might or might not be guilty according to the 
circumffances of the fa£l that might induce the court and 
jury to judge him doli capax, vel incapax (m), 

2 This 

(k) Co. Lir.z^i.I'. (»?3 By tfie laws of /m, /. 7. an infant 

(I) The like exception tliere is in tlic of ten years of age might be guilty of 

iz Ann. cap. "J. where apprentices under being acceflliry to a theft, and was pu- 

the age of ///"c^;/ years, who fliail rob nifhcd accordingly with fervitude. Wdk, 

their mailers, are excepted out of tho aft. leg. Anglo-Sax. p. i6. 



Hiftoria Placitorum Coronas. 23 

This appears by the laws of king Athelflan mentioned in the 
firfl: chapter, " Non parcatur alicui latroni fuper i z annos tf 
fupra I 2 d. quin occidatur." x\nd altho his luccefTor Edmund (n) 
reduced it to fifteen years, iinlefs he fled, yet it will appear 
that the ftandard of twelve years obtained in after-ages (o). 

2. It appears that an infant of twelve years was compel-' 
lible to take the oath of alligeance in the leet, and under 
that age none were to take the oath, or to do fuit to the 
leet. Bra5i.Lib.\ll.{p) cap. i-iq) BrittoH, cap. 29. in fine, Cal- 
vin s cafe, 7 Co. Rep. 6. b. So that at that age, and not be- 
fore, he was taken notice of by the law to be under the 
obligation of an oath, and confequently capable of dif- 
cretion. 

3 . The ordinary procefs againft capital offenders was and 
is by Capias and Exigent, and Vtlary thereupon ; but againft 
an infant under twelve procefs of utkry in cafes of indift- 
ment was not awardable, and if awarded, it was error ; but 
if above that age, that procels was awardable ; and Bra6t. 
Lib. III. (r) cap. 1 1. fe^. 4 ^ $> gives the reafon, " Minor 

vero, qui infra <etatem i 2 annorum fuerit, utkgari non debet, 
quia ante talem £tatem non efl fub lege aliquu nee in decenna ' ; 
and ibidem cap. i o, jeSh. i . he mentions an old law of king 
Edward (f), " Omnis, qui <etatis i 2 annorum fuerit, facer e de- 

'' bet 

(n) This is a miftake, for it was not any regard to his age. See IF/lk, leges 

Edmund but king Athclftan himfelf, who Avglo-Sax. p. 70. 

thinking it a pitiable cafe that a youth (0) In the time of king Hetiry I. the 

but twelve years old fliould be put to old law of king y^//.Wy?fl« took place, w'a. 

death, as was permitted by the former twelve years of age, and 'id. value. Ihid. 

law, changed the time from twelve years /. 259. 

to fifteen, and ordered that none who (/>) 1)e Corona. 

was but fifteen years of age /hould be (^) This feems to be a miftake, for 

put to death, unlefs he refilled or fled ■■, cap. 11. fe£i. 4. for the oath mentioned 

if he furrendered himfelf, he was only in cap. i. was to be taken by knights and 

to be imprifoned until fome of his rela- others of the age of fifteen years and 

tjons or friends would become fecurity upwards, 

for him jiixta plenum copitii dftiwati- (r) ^e Corona. 

o;;ew, tit femper ah omni walo ahflmeaty (f) There is no fuch law extant a^ 

if he could not get any fuch fecurity, mong thofe of king Edivard, but the 

then he was to take an oath to the fame law here quoted is a law o( Cm/te, Leg. 

purpofe in fuch manner as the bifliop Cm/ri, I. 19. which is in thefe words, 

fhould dirc£l him, and was to remain in Columns nt quililet homo 12 annos natiis 

fcrvi'ute -pro capitis ftii teftijnaticne :, but jiisjurandinn pr^Jlet fe nolle furem effe 

if after this he fhould be again guiltv, iie:jiie fnri confentanevm^ which oath is 

then he was to be put to death without to the fame purpofe with that mentioned 

by 






14 Hi/ioria Placitorum CoroUie. 






" het ^acY amentum in vifii franc/pbgii, quod nee latro viilt effe, nee 
latroni confentire" ; and Stamj. Lib. I. cap. i c,'. cites our of a 
book of Bra^on, De Fifii Franc i plegii, " (diiod quilihet dmde^ 
" cim annomm potefl feloni^ judicium juflmere'\ which implies 
alfo that within that age, regularly at ieait, he could not be 
a felon. 

4. Again, T. 32. E. i. Rot. 32. Eboracu/n, coram rege, 
*' Jdam films Adct de Arnhale captus noBantcr in domo Jobannis 
" Somere coram rege duBus cognovit, quod furtive cepit, isfc. 9 s. 
" per pr^ceptum iff mijjionem Richardi Short ■: " Richard Short 
had his clergy, " Et pr.ediBus Adam commijfus fuit cuflodi^ 
*' marifcalli cuflodiend\ quia infra <etatem ; poftea habit refpe6iu 
" ad imprifonamentum, quod pr^diBus Adam habuit, iff etiam ad 
*' teneram eetatem ejufdem Ad^, eo quod non efi nifi (Ctatis i 2 
" annorum, qui talis .etatis judicium ferre non potefi, ideo de 
" gratia regis deliberetur, iffc.^' Upon this record thefe things 
are obfervable, 7;/^. i . The court recorded his confeflion ; but 
regularly that ought not to be, for if an infant under the age 
of twenty-one lliall confeis an indiftment, the court in juftice 
ought not to record the confeflion, but put him to plead not 
guilty, or at leafl: ought alfo to have inquired by an inqueft 
of office of the truth and circumftances of the fail. 2. That 
Tiere he was twelve years old, and yet judgment fpared, and 
the reafon given, ^li talis ctatis judicium ferre non potefi. 
Yet 3 . There is fomewhat ftill of gratia regis interpofed, as 
it feeras, in refpe61: he was paft the old ftandard of twelve 
years. 

II. But now let us come to the Common law as it ftood in 
after-times, for in procefs of time, efpecially in and after the 
reign of king EdrvardlW. the Common law received a greater 
perte£lion, not by the change of the Common law, as fome 
have thought, for that could not be but by a£l of parlia- 
ment ; but men grew to greater learning, judgment and ex- 
2 perience, 

by !Sr/;&07!, Li!'. III. ^c corona^ cap. t. m/. 10 SS? 25. and lord Code's comment 

to be taken at the age of fifteen j and thereon, 2 Infi. 147. where he takes no- 

tho there be a difference as to the age, tice that the old books are mifprinted. 

yet probably it is the fame oath, for it See alfo 2 I/?ftit. 72, Mirror, cap. i, §. 3. 

is very eafy and natural to mUlakc xu Sriuon, cap. 12. 
■^r XV, See the ftatute of Marilri/tgc, 



Hijioria Placitorum Corona. 2^ 



perience, and re£lified the miftakes of former ages and judg- 
ments, and the law^ In relation to infants and their piinilh* 
ments for capital oftenfes w^as and to this day is as followeth. 

I. It is clear that an infant above fourteen and under 
twenty-one is equally fubje£l to capital punilhments, as well 
as others of full age ; for it is pr^efumptio juris, that after four- 
teen years they are (loli capaces, and can difcern between good 
and evil ; and if the law Ihould not animadvert upon fuch of- 
fenders by reafon ot their nonage, the kingdom would come 
to confuiion. Experience makes us know, that every day 
murders, bloodiheds, burglaries, larcenies, burning of houfes, 
rapes, clipping and counterfeiting of money, are comniitted 
by youths above fourteen and under twenty-one; and if they 
Ihould have impunity by the privilege of luch their minority, 
no man's life or eil:ate could be fafe (t). In my remembrance 
at Thetford a young lad of lixteen years old was convi6l for 
fuccelhve wilful burning of three dwelling-houies, and in the 
laft of them burning a child to death, and yet had carried 
the matter fo fubtilly, that by a falfe accufation of another 
perfon for burning the firif houfe an innocent perfon was 
brought in danger, if it had not been llrangely diicovered: 
he had judgment to die, and was accordingly executed, (u) 

Fomteen years of age therefore is the common ifiandard^ 
at which age both males and females are by the law obnoxious 
to capital punilhments for offenfes committed by them at any 
time after that age; and with this agrees Fit^.N.B. loz.b. (x) 
Co.LittL §.405.(7) Fidt,' Mr. Daltons Jilfiice of Peace, cap% 
95, and 104. (^) 

H 2. An 

(r) Our author's argument conc!ii(1es before Wj/tlock juflice, one yoJvi 'Dean 

very flrongly againft their efcaping with an infant between eight -.md nine years 

impuniiy^ but lofes much of its force was indited, arraigned, and found guilty 

when urged in behalf of capital punifii- of burning two barns in the town of 

irients, for there is no neceflity that if IVindfor •, and it appearing upon exami- 

they be not capitally puniflied they mull nation that he had malice, revenge, 

therefore go unpunifhed ■■, fo that what- craft and cunning, he lutd jiidgtnent to 

ever feverity may be needful in cafes of be hanged, and was hanged accordmgly, 

murders and a£ts of violence, yet In the MS. Report. 

common inftances of larceny and rteal- (.v) N. Edit. p. 450. 

jng fome other punifliment might be (y) p.z\i. b. 

found, which might leave room for the (2;^ The firlf edition, but in the la (^ 

ircformation of young offenders. edition, c^, 147 and 157. 

(ttj At Abiifgdou affizes, Feb. 23. itfijj. 



i6 Hiftoria Placitorum Corona;. 

2. An Infant under the age of fourteen years and above 
the age of tweh^e years is not prima facie prefumed to be 
doli capdx, and therefore regularly for a capital oftenfe com- 
mitted under fourteen years he is not to be convicted or 
have judgment as a felon, but may be found not guilty. 

But tho prim-i facie and in common prefumption this be 
true, yet if it appear to the court and jury that he was doli 
capax, and could difcem between good and evil at the time 
of the offenfe committed, he may be convi6led and undergo 
judgment and execution of death, tho he hath not attained 
annum pub en at is, vi^. fourteen years ; tho according to the 
nature of the oftenfe and circumftances of the cafe the 
judge may or may not in difcretion reprieve him before or af* 
ter judgment, in order to the obtaining the king's pardon. 
I 2 Jjf. 3 o. Corone 1 1 8 i^ 170. Alice de Walborough of 
the age of thirteen years was burnt by judgment for killing 
her miftrefs, and it is there faid, that by the antient law none 
lliall be hanred within age which is intended the age of dif- 
cretion, vi^. fourteen years ; but before Spigurnel an infant 
within age {a\ that had kild his companion, and hid himfelf 
{fe muchd) was prefently hanged ; lor it appeared by his 
muching he could diicern between good and e\'il, and malitia 
fupplet statem. 

2 5 E. 3.25. Corone i 29. One within age was found guilty 
of larceny, and by reafon of his nonage judgment was re- 
fpited, but afterwards he was brought to the bar and had 
his judgment ; tho this book be generally one within age, it 
muft be intended within the age of diicretion, rv^, fourteen 
years, for it was never made a doubt, whether if above that 
age he might not have judgment. 

3. But yet farther, if an infant be above feven years old 
and under twelve yeara*, (which according to the antient law 
was Mtas pubertati proxima) and commit a felony, in this cafe 
prim! facie 'h^ is to be judged not guilty, and to be found lo, 
becaule he is iuppoled not of difcretion to judge betv^^een good 
and evil {b) ; yet even in that cafe, if it appear by ifrong 

4 and 

(a) Ten years olH according to Fitz- (I) Corone i^-^, 
herhert s Report Corone ii8. 



Hiftoria Placitorum Corona, 27 



and pregnant cAadence and circiimftances, that he had difcre- 
tion to judge between good and evil, judgment of death 
may be given againft him. 3 H. 7. i,h. ^iz.b. An infant of 
the age of nine years kild an infant of the like age, he con- 
feiTed the felony, and upon examination it was found he hid 
the blood and the body ; the juftices held he ought to be 
hanged, (c) , 

But in cafes of this nature, i . It is necelfary that very 
ftrong and pregnant evidence ought to be to convift one of 
that age, and to make it appear he underftood what he did ; 
for if the law require fuch an evidence where the offender is 
above tv^'elve and under fourteen, much more if he were un- 
der twelve at the time of the fa£l; committed. 2. The cir- 
cumftances muft be inquired of by the jury, and the infant 
is not to be convict upon his confeflion. 3. It is prudence 
in fuch a cafe even after conviftion to refpite judgment, or at 
leaft execution {d) ; but yet I do not fee how the judge can 
difcharge him if he be convift, but only reprieve him from 
judgment, and leave him in cuftody till the king's pieafure be 
known. ,. , 

And therefore the book of 3 5: R <?. i i. ^ 1 2. per Moyk 
^ Billing, " That tho a jury JJjould find fuch an infant guilty^ 
" the court ex officio mufl difcharge hirn\ mtdl: be underftood 
either firfl only of a reprieve before judgment, or fecondly at 
leaft, that the jury find the fafl:, and that he was either within 
the age oi" infancy, viz^. feven years old, or that he did the 
f ift, but was under fourteen, and not of difcretion to judge 
between good and evil ; in which cafe the court ex officio 
ought to difcharge him, becaufe it is not felony. 

4. And laftly, If an infant within age be infra dtatem in^ 
fanti^, vi^. fcven years old, he cannot be guilty of felony {e\ 

what- 



(c) But however they refpired the ex- (^) And yet there is a precedent in 

ecution that he might get a pardon, f. Co- the regHler, fol. 509. V. of a pardon 

tone 57. S. Coro-iie i;;. Dalton fays granted to an infant within the age of 

that an infant of eight years of age may feven years, who was indicted for homi- 

eommit homicide, and Tiail be hanged cide; in this cafe the Jury found, that 

for it. See 'D"liou\ jfufticc, cap. 147. he did the fa^ before he was feveo 

(/^; 'Dalr. Jtiili'^i p. 505. years old. 



28 Hiftoria Placitorum Corouce. 

whatever circiimftances proving difcretlon may appear; for ex 
pr^fumptiom pris he cannot have difcretion (/), and no aver- 
ment lliall be received againft that prefiiniption : and altho 
the laws of England, as well as the Civil and Canon law, aflign 
3. difference between males and females as to their age of con- 
fent to marriage, xi/^. fourteen to the male, twelve to the 
female ; yet it feems to me, that as to matters of crimes, e- 
fpecially in relation to capital punilliments, the females have 
the fame privilege of nonage as the males ; and therefore the 
regular jEtas pubertatis in reference to capital crimes and pu- 
nilliments of both is fourteen years, with thofe various tem- 
peraments and exceptions above afligned. 

And it is to be obferv'd, that in all cafes of infancy, infa* 
nlty, ^c. if a perfon uncapable to commit a felony be in- 
dicted by the grand inqueft, and thereupon arraigned, the pe- 
tit jury may either find him generally not guilty, or they may 
find the matter fpecially, that he committed the faft, but that 
he was non compos, or that he was under the age of fourteen, 
fcilicet tetatis i 3 annorum, and had not difcretion to difcern 
between good and evil, i!f non per fcloniam ; and thereupon the 
court gives judgment of acquittal. 2 1 H. 7. 3 i • f^) But if a 
man be arraigned in fuch a cale upon an indi£lment of mur- 
der or manllaughter by the coroner's inqucfl, there if the 
party committed the fa6l, regularly the matter ought to be 
fpecially found, becauie if the jury find the party not guilty, 
they muft inquire how he came by his death, xv:^. " Et jura- 
tores pr^dicii (pxfiti per curiam, quomodo is ad mortem fuam 
devenit, dicunt fuper jacramentum Jtium, quod pnt'divlus A. B. 

die anno apud D. dum nonfuit compos mentis, or 

dum fuit infra ^tatem difcretionis, fcilicet 9 annorum, nee fci- 
" vit difcernere inter bonum i?' malum, pr^di6tum J. S. cum gU" 
*' dio, is^c. percujfit isf ipfum ad tunc ^ ibidem occidit, fed non 
" ex malitiu pr^cogitatd, neque per feloniam, vet felleo animo ; 
" iSf fie idem J. S. ad mortem fuam devenit.^' But if he be firit 
arraigned, and acquitted upon the indi£lment by the grand 
4 inqueft, 

if) I'lo'-Ji^d. 19. a, C^) S. Corofie Ci. 



u 
u 



HifloYta Placitorum Corona. 29 

inqiieft, and found not guilty, he may plead that acquittal 
upon his arraignment upon the coroner's inqueft, and that 
will difcharge him ; and the petit jury Ihall inquire farther 
how the party came hy his death. 



CHAP. IV. 

Concerning the defe& of ideocy, madnefs 
and lunacy, in reference to criminal of- 
fenfes and punipments. 

And thus far touching that natural defe£l: of infancy. 
•'- ^ Now concerning another fort of defe£l: or incapacity, 
namely ideocy^ mMnefs and kmacy : For tho by the law oi 
England no man Ihall avoid his own acl by reafon of thefe 
deie£ls (a), tho his heir or executor may, yet as to capital 
offenfes thefe have in fome cafes the advantage of this defe£t 
or incapacity (b) ; and this defe£l comes under the general 
name of Dementia, which is thus diftinguiihed. 

I. Ideocy, or fatuity a nativitate vel dementia naturalis ; fiich 
a one is defcribed by Fit^herhert, who knows not to tell lOs. 
nor knows who is his father or mother, nor knows his own 
age ; but if he knows letters, or can read by the inftruftion 
of another, then he is no ideot. F. N. B. zt^t,. h. Thefe, 
tho they may be evidences, yet they are too narrow and con- 
clude not always ; for ideocy or not is a queftion of fail tri- 
able by jury, and fometimes by infpe£l:ion. 

I II. De- 

(a) For it is faid to be a maxim in or remember what a^s he did when he 

law, that no man of full age fliall be per- was of 12071 fane memory. 5 5 JJ]if-pl. 10. 

niitted to llultify himfelf. 4 Co. Rep.ii'^. Sec contra F. N. S. p. 449. Shonio. Ca. 

I;. ScveiiyscaCc, Co.Lir.m-].a. the rea- y^r/, 155. x Salk. 575. 
fon hereof is, bccaufe a man cannot know [h] Co. Lit. 247. 1. 'Ploivd. ip. <t. 



50 Hifloria PI act tor urn Cor once. 



II. Dementia accidentalis, vel adventitia, which proceeds 
from feveral cauies ; lometimes from the diftemper of the 
humours of the body, as deep melancholy or adult choler ; 
fometimes from the violence of a dileafe, as a fever or palfy ; 
fometimes from a concuilion or hurt of the brain, or its 
membranes or organs ; and as it comes from feveral caufes, 
fo it is of feveral kinds or degrees ; which as to the purpofe 
in hand may be thus dittributed : i . There is a partial infa- 
nity of mind ; and 2 . a total infanity. 

I'he former is either in refpeft to things quoad hoc vel il- 
lud injanire ; fome perfons, that have a competent ufe of rea- 
fon in refpe6l of iome fubje£1:s, are yet under a particular 
dementia in refpeft of fome particular difcourfes, fubjefls or 
applications j or elfe it is partial in refpeil of degrees ; and 
this is the condition of very many, efpeciaJly melancholy 
perfons, who for the moft part difcover their defe£l in excei- 
five fears and griefs, and yet are not wholly deftitute of the 
ufe of reafon ; and this partial infanity feems not to excufe 
them in the committing of any offenle for its matter capi- 
tal ; for doubtlefs moft perfons, that are felons of themfelves, 
and others are under a degree of partial infanity, when they 
commit thele offenfes : it is very difficult to define the indi- 
vilible line that divides perfeft and partial infanity, but it 
muft reft upon circumftances duly to be weighed and confi- 
dered both by the judge and jury, left on the one fide there 
be a kind of inhumanity towards the defefts of human na- 
ture, or on the other fide too great an indulgence given to 
great crimes : the beft meafure that I can think of is this ; 
fuch a perfon as labouring under melancholy diftempers hath 
yet ordinarily as great underftanding, as ordinarily a child of 
fourteen years hath, is Inch a perfon as may be guilty of trea- 
fon or felony. 

Again, a total alienation of the mind or perfe6l madnefs; 
this excufeth from the guilt of felony and treafon {d) ; de qui- 
bus infra. This is that, which in my lord Coke's Pleas of the 
Crorrn, p. 6. is call'd by him abfolute madnefs, and total de- 
privation of memory. 

2 lAgain, 

(d) 21 H. 7. ji. i. 



Hijtoria Placitorum Cor once. 31 

Again, this accidental dementia^ whether total or partial, 
is dIftlnguHlied into that which Is permanent or fixed, and 
that which is interpolated, and by certain periods and viciili- 
tudes : the former is -phrenefis or madnefs, the latter is that^ 
which is iifiially call'd lunacy, for the moon hath a great in- 
fiiience in all difeafes of the brain, efpecially in this kind of 
dementia ; fuch perfons commonly in the full and change of 
the moon, efpecially about the Equinoxes and fummer folilice, 
are iifually In the helghth of their diilemper ; and therefore 
crimes committed by them in fuch their diftempers are un- 
der the fame judgment as thofe whereof we have before fpo- 
ken, namely according to the meafure or degree of their di- 
ilemper J the perlon that is abfolutely mad for a day, killing 
a man in that diftemper, is equally nor guilty, as if he were 
mad without Intermlllion. But fuch perfons as have their 
lucid Intervals, (which ordinarily happens between the full 
and change of the moon) In futh intervals have ufually at 
leaf!: a competent life of reafon, and crimes committed by 
them in theie intervals are of the lame nature, and fubjecl 
to the fame puniihmcnt, as if they had no fuch deficiency {e) ; 
nay, the alienations and contracts made by them in fuch in- 
tervals are obliging to their heirs and executors. (/) 

Again, this accidental dementia., whether temporary or per- 
manent, Is either the more dangerous and pernicious, com- 
monly call'd furor, rabies, mania, which commonly arileth 
from adulf choler, or the violent Infiamatlon of the blood 
and fpirits, which doth not only take away the ufe of reafon, 
but alio iuperadds to the unhappy ftate of the patient rage, 
fury, and tempellupus violence; or elie It Is fuch as only takes 
away the ufe and exerclle of reafon, leaving the perfon other- 
wife rarely noxious, inch as is a deep delirium, Jiupor, me- 
mory quite lolf, the phanrafy quite broken, or extremely dlf- 
orderd. And as to criminals thefe dementes are both in the 
fame rank ; if they are totally depriv'd of the ule of reafon, 
they cannot be guilty ordinarily of capital ofFenfes, for they 
have not the life of underlfandlng, and a£l: not as reaionable 

creatures, 

CO F. Co roue 324. (f) 4 Co. 12 y a. 



32. Hijtoria Placitorum Corona. 

creatures, but their a£lIons are in effe£l in the condition of 
brutes. {£) 

III. The third fort of dementia is that, which is dementia 
affe^ata, namely drimkennefs : This \'ice doth deprive men of 
the ufe of realon, and puts many men into a perfe£l, but 
temporary phrenzy ; and therefore, according to fome Civi- 
lians (/;), fuch a perfon committing homicide Ihall not be pu- 
nillied fimply for the crime of homicide, but Ihall fufFer for 
his drunkennefs anfwerable to the nature of the crime occa- 
Hond thereby ; fo that yet the formal caule of his punilli- 
ment is rather the drunkennefs, than the crime committed in 
it : but by the laws of England fuch a perfon (/') Ihall have no 
privilege by this voluntary contracted madnefs, but fhall have 
the fame judgment as if he were in his right fenfes. Plorpd, 
i^. a. Crompt. Jiifl. ic). a. 

But yet there feems to be two allays to be allowed in this cafe. 

1 . That if a Perfon by the unfkilfulnefs of his phyfician, 
or by the contrivance of his enemies, eat or drink fuch a 
thing as caufeth fuch a temporary or permanent phrenzy, as 
aconitum or niix vomica^ this puts him into the fame condition, 
in reference to crimes, as any other phrenzy, and equally ex- 
cufeth him. 

2. That altho the fmpJex phrenzy occafiond immediately 
by drunkennefs excufe not in criminals, yet if by one or more 
fuch praftices, an habitual or fixed phrenzy be causd, tho 
this madnefs was contra6lcd by the vice and wall of the party j 
yet this habitual and fixed phrenzy thereby causd puts the 
man into the fame condition in relation to crimes, as if the 
fame were contrailed involuntarily at firff. 

Now touching the trial of this incapacity, and who fhall be 
adjudged in fuch a degree thereof to excufe flrom the guilt of 
capital offenfes, this is a matter of great difficulty, partly from 
the eafmefs of counterfeiting this difability, when it is to ex- 
cufe a nocentj and partly from the variety of the degrees of 
2 this 



(g) jBra6l. 420. ^. F. Coroae 193, ruvias, 'Tom. r. /. 557. in rcUB. ai 
551. Cle»i. Si fKrioJiis. TarAU.^.'ii^ 4. 

(^b) Sartbol!?2US and others. See Covar- 0) 4-^0. ij.^. a. 



Hifioria Placitonim Coronae, 3^ 

f — — "^ ~~ ' - 

this infirmity, whereof fome are fufficient, and fome are ii> 
fufficient to excufe perlons in capital oftenles. 

Yet the law of England, hath aftbrdcd the belt metliod of 
trial, that is poffible, of this and all other matters of facl, 
namely by a jury oi" twelve men all concurring in the fame 
judo-ment, by the teftimony of witneiTes uiiui -voce in the pre- 
fence of the judge and jury, and by the infpe£lion and di- 
reclion of the judge. 

There are two iorts of trials of ideocy, madnefs or luna- 
cy ; the firif , in order to the commitment or cuftody of the 
perfon and his eftate, which belongs to the king, either to 
his own life and benefit, aS in cafe of ideocy ; or to the uie 
of the party, in cafe of accidental madneis or hmacy ; and in 
order hereunto there ilTues a writ [K) or commlllion to the 
Iheriff" or efcheator, or particular commiflioners both by their 
own Infpeftion and by inquifition to inquire, and return 
their Inquilition into the Chancery ; and thereupon a grant or 
commitment of the party and his efbte enfues ; and in caie the 
party or his friends find themfelves injured- by the finding him 
a lunatick or ideot, a fpecial writ may ifTue to bring the party 
before the chancellor, or before the king to be infpedted. 
Vide Fit^. N. B. 233. (/j 

But this concerns not the purpofe in hand j for whether 
the party that is fuppofed to commit a capital ofienfe be thus 
found an ideot, madman, or lunatick, or not, yet if really 
he be fuch, he fhall have the privilege of his ideocy, lunacy, 
or madnefs, to excufe him in capitals. 

Secondly therefore, the trial of the incapacity of a party 
indicted or appealed of a capital offenle is, upon his plea of 
not guilty, by the jury upon his arraignment, who are to in- 
quire thereupon touching fuch incapacity of the priioner, 
and whether it be to fuch a degree, as may excuie him from 
the guilt of a capital oftenfe. (m) 

In prefumption of law every perfon of the age of difcre- 
tion is prefumed of fane memory, unlefs the contrary be 
proved ; and this holds as well in cafes civH, as criminal. 

(it) Sec Stamf.'^rerog. ;;./-. (/) N. Fdit. 517. (m) Savil. 5c. x Jiid. icj. 



^4 Hijtoria Placitorum Corouce. 

Again, if a man be a liinatick, and hadi his lucida inter-' 
*valla, and this be fufficiently proved, yet the law prefumes 
the a£ls or ofFenies of fiich a perlon to be committed in thofe 
intervals, wherein he hath the life of reafon, iinlefs by cir- 
cumftances or evidences it appears they were committed in 
the time of his diftemper ; and this alfo holds in civils, as 
well as in criminals. 

And altho in civil cafes he, that goes about to allege an 
a£l: done in the time of lunacy, mull ftriflly prove it fo 
done, yet in criminal cafes (\\diere the court is to be thus far 
of counfel with the prifoner, as to alTift him in matters of 
law and the true Hating of the fa£l) if a lunatick be indi£led 
of a capital crime, and this appears to the court, the witnef- 
fes to prove the fa£l; may and muft alio be examined, whe- 
ther the prifoner were under a£lual lunacy at the time of the 
offenfe committed. 

A man, that is furdus ^ mutus a nativhate, is in prefump- 
tion of law an ideot, and the rather, becaule he hath no 
poifibility to underftand, what is forbidden by law to be done, 
or under what penalties («) : but if it can appear, that he 
hath the ufe of underftanding, which many of that condi- 
tion difcover by figns to a very great meaiure, then he may 
be tried, and iulFer judgment and execution, tho great cau- 
tion is to be ufcd therein, {o) 

I come now to apply what has been faid to the various 
natures of capital crimes. 

If a man in his found memory commits a capital offenfe, 
and before his arraignment he becomes abfolutely mad, he 
ought not by law to be arraigned during fuch his phrenzy, 
but be remitted to prifon until that incapacity be removed ; 
the reafon is, becaufe he cannot advifedly plead to the indi£l- 
ment ; and this holds as well in cafes of treaf on, as felony, 
I even 

in) Vide Leg. Alfredi, !. 14. Ti.Corone of God, lie fliall not fuftcr. Crompt. jfujl. 

ici ^ 217. 19. a. but If one, who is both deaf anil 

(0) According to 4; AlT'f- /''• ?c. and dumb, may difcover by Hgns, that he 

8 //. 4. i. if a prifoner Hands mute, it hath the ufe of undcrllanding, much 

Jl all be Intjulrcd, wlicthcr it be wilful more may one, who is only dumb, and 

or by the ait of God, from whence confeqwently may be guilty ot felony, 

Cnwj't'^n Infers, that if It be by the .til fid qutcrc, how he nir.l! be arraigned. 



Hijioria Placitorum Corona, 3^ 

even tho the delinquent in his found mind were examined, 
and confeffed the offenfe before his arraignment : and this ap- 
pears by the ftatute of" 3 3 H. 8. cap. 20. which enafled a 
trial in cafe of treaion after examination in the ablence of the 
Party ; but this il:atute (lands repeaid by the ftatute of i <i> 2 Phil. 
isf Mar. cap. 10. Co. P. C. p. 6. And if fuch perfon after his 
plea, and before his trial, become of non fane memory, he fhall 
not be tried ; or, if after his trial he become of non Jane mc' 
mory, he fhall not receive judgment ; or, if after judgnient 
he become of non jane memory, his execution iliall be fpared ; 
for were he of found memory, he might allege fomewhat 
in flay of judgment or execution. Co. P. C. 4. (p) 

But becaufe there may be great fraud in this matter, yet 
if the crime be notorious, as treajon or murder^ the judge be- 
fore fuch refpite of trial or judgment may do \\^ell to impa- 
nel a jury to inquire ex officio touching fuch infanity, and 
whether it be real or counterfeit. 

If a perfon of non jane memory commit homicide during 
fuch his infanity, and continue fo till the time of his arraign- 
ment, fuch perfon lliall neither be arraigned nor tried, but 
remitted to gaol, there to remain in expeftation of the king's 
grace to pardon him. 26 Ajf. i-]. 3 £• 3. Corone 351. 

But it feems in fuch a cafe it is prudence to fwear an in- 
queft ex officio to inquire touching his madnef s, wliether it was 
f eignd ; and thus it was done in the cafe of 3 £• 3 • and in So- 
mervifsc^x^Q, AnderfonsRep. par. i. n. i$/{. But in cafe a man 
in a phrenzy happen by fome overlight, or by means of the 
gaoler to plead to his indi£lment, and is put upon his trial, 
and it appears to the court upon his trial, that he is mad, the 
judge in diicretion may difcharge the jury of him, and remit 
him to gaol to be tried after the recovery of his underftand- 
ing, efpecially in cafe any doubt appear upon the evidence 
touching the guilt of the fail:, and this in javorem viu ; and 
if there be no colour of evidence to prove him guilty, or if 
there be a pregnant evidence to prove his infanity at the 
time of the fact committed, then upon the lame favour of 
life and liberty it is fit it lliould be proceeded in the trial, in 

order 

ip Sec Sir yJ:;: ll.rx'.ci's remarks on 'Batcma-d\ tria]. SiatcT'rif.h, Vol. 4./. 105. 



36 Hi ft or i a Placitorum Corona. 

order to his acquittal and enlargement. If a perfon during 
his infanity commit homicide or petit treajon, and recover his 
underilanding, and being indifled and arraigned for the fame 
pleads not guilty^ he ought to be acquitted ; for by reafon of 
his incapacity he cannot a61 felleo animo. iiH. 3. Dorver 
183. Forfeiture 33. 21 H 7. 31./'. il alera quite, that is, 
fhall be found not guilty. 

And it is all one, whether the phrenzy be fixd and perma- 
nent, or whether it were temporary by force of any difeafe, 
if the fa£l; were committed while the party was under that 
diitemper. 

In the year 16 62. at Aylesbury a married woman of good 
reputation being deliverd of a child, and having not ilept 
many nights fell into a temporary phrenzy, and kild her in- 
fant in the abience of any company ; but, company coming 
in, fhe told them, Ihe had kild her infant, and there it lay 5 
ihe was brought to gaol prefently, and after lome fleep iKe re- 
covered her underftanding, but marvelled how or why Ihe came 
thither j Ihe was indi£l:ed for murder, and upon her trial the 
whole matter appearing it was left to the jury with this di- 
re6lion, that if it did appear, that ih.e had any ufe of reafon 
when Ihe did it, they were to find her guilty ; but if they 
found her under a phrenzy, tho by reafon of her late delivery 
and want of fleep, they Ihould acquit her ; that had there 
been any occafion to move her to this fa£l:, as to hide her 
ihame, which is ordinarily the cafe of fuch as are delivered 
of baftard children and deftroy them ; or if ^ there had been 
jealoiify in her husband, that the child had been none of his, 
or if Ihe had hid the infant, or denied the fatl, thele had 
been evidences, that the phrenzy was counterfeit ; but none of 
theie appearing, and the honefty and virtuous deportment of 
the woman in her health being known to the jury, and many 
circumrtances of infanity appearing, the jury found her not 
guilty to the fuisf ;61:ion of all that heard it. 

Touching the great crime of treajon regularly the fame is 
to be laid, as in cafe of homicide^ fuch a phrenzy or infinity, 
as excufeth from the guilt of the one, excul'eth from the guilt of 
the other ; the reafon is the fame ; he that cannot a6l: felonicc 
■ I or 



Hiftoria Placitonim Corona. 37 



tc 



or animo felonko cannot aft proditorie, for being under a full 
alienation of mind, he afts not per 'cle5lionem or intentionem. 
This appears by the ftatiite of 33 H. 8. cap. 20. which tho it 
enaft, that a wow compos mentis lliall be tried for treafon, yet 
it exprelly declareth, " That if any commit high trealon, 
while they are in good, whole and perfe£t memory, and 
" after examination become non compos mentis, and that it be 
" certified by four of the council, that at the time of the 
" treafon they were of good, found and perfe6l memory, and 
" then not mad, nor lunatic, and afterwards became mad ; 
" then they lliall proceed to trial" : which ftrongly en- 
forceth, that a treafon cannot be committed by a madman, o'r 
lunatic, during his lunacy. 

And with this agrees my lord Coke, P. C. p. 6. in thefe 
words, lie that is non compos mentis, and totally deprived of 
all compajjings and imaginations, cannot commit high treafon by 
compajfing or imagining the death of the king ; for furiolus folo 
furore punitur ; kit it mufi be an abfolute madnefs, and a total 
deprivation of memory. 

This tho it be general, yet the fame author tells us, 4 Rep. 
124.J'. Beverly s cafe, in thefe \^'ords, Mes in afcim cafes non 
compos mentis poit committe haidt treafon, come fi il tud, ou offer 
a titer k roy. This Is a lafe exception, and I iTiall not que- 
ftion it, becaufe it tends fo much to the f^.fety of the king's 
perfon : but yet the fame author, P. C. p. 6. tells us, that tho 
this was antiently thought to be law, yet it is not fo now ; 
for fuch a perfon as cannot compafs the death of the king by 
reafon of his Infanlty, cannot be guilty of treafon within the 
ftatute of 2 5 £, 3 . ^ And thus far concerning the incapacity 
of ideocy, madneis and lunacy. 



CHAP. 



38 Hijforia Placitorum Corona. 



CHAP. V. 

Concerning cafualty and misfortune, ho'm 
far it exciifeth in criminals. 



I Come to the fecond kind of accidental defects, vi^. cafu' 
alty and misfortune, and to confider how far it excufeth ; 
and firft, we are to obferve in this, and likewife in fome other 
of the defc6ls before and hereafter mentioned, a difference 
between civil fiiits, that are terminated in compenjationem damni 
illati, and criminal fuits or prolecutions, that are in uindiBam 
criminis commi(fi. 

If a man be fhooting in the fields at rovers, and his ar- 
row hurts a perfon Handing near the mark, the party hurt 
ilial! have his a£lion of trelpafs, and recover his damages, 
the the hurt were calual (a) ; for the party is damnified by 
him, and the damages are but his reparation ; but if the party 
had been kild, it had been per infortunium^ and the archer 
ihould not fuffer death for it, tho yet he goes not altogether 
tree from all punilhment (/>). 6 E. 4. -j. per Cateshy. (c) 

As to criminal proceedings, if the a£l, that is committed, 
be limply cafual, and per infortunium, regularly that a6l, which, 
were it done ex animi intentione, were punilhable with death, 
is not by the laws of England to undergo that punilhment ; 
for it is the will and intention, that regularly is required, as 
well as the ail, and event, to make the offenic capital. 

2 Now 

(a) Hoh. 134. (j.'V cnim efl placitnm, qui ivfcienter 

{h') For he forfeits all his goods and prccut, fiienter cmoidet j but by the 

chattels. 2 H. 3. 1 8. F-Cor-mc 502. 2 Co. fame law, if one, who was (landing on a 
Jiifl,. 149. 9 Co. li/ftir. 22c. By the an- , tree, or any other place, where he was 

ticnt law he was liable to make the fimc at work, fliould chance to fall on an- 

reconipenlc or -icetrg l^, as in any other other pafling by, he was not to pay any 

cafe ot homicide 5 r. g. if one fhooting thing, but was deemd intirely innocent, 

at a mark fliould accidentally wound and See ll'ilk. Leg. j^iiglo-Sax. p. 277, 279. 
kill another, he was neverthelefs to pay (0 ^- Corojie 148. Tref^afs 310. F. 

his wcrcgild. Leg. H. 2. /. 88. /. 90. Le- Corone 554. 



Hiftoria Placitorum Corouce, 59 



Now, what fhall be faid thus fimply cafiial, and what the 
puniftiment, will be at large confiderd, when we come to 
homicide -per infortunium ; only fomething will be neceflary to 
be faid thereof here. 

If a man do ex intentions and voluntarily an unlawful aO: 
tending to bodily hurt of any perfon, as by ftriking or beat- 
ing him, tho he did not intend to kill him, but the death of 
the party ftruck doth follow thereby within the year and 
day (d) ; or if he ftrike at one, and miffing him kills another, 
whom he did not intend, this is felony (e) and homicide, and 
not cafualty or per infortunium. 

So it is if he be doing an unlawful afl, tho not intending 
bodily harm of any perfon, as throwing a ftone at another's 
horfe, if it hit a perfon and kill him; this is felony and ho- 
micide, and not per infortunium (f) ; for the a£l was volun- 
tarv, tho the event not intended ; and therefore the a£l it 
felf being unlawful, he is criminally guiJty of the confe- 
quence, that follows : 

But if a man be doing a lawful a£l without intention of 
any bodily harm to any perlon, and the death of any perfon 
thereby enfues, as if he be cleaving wood, and the ax flies 
from the helve, and kills another, this indeed is manllaughter, 
but per infortunium ; and the party is not to luiler death, but 
is to be pardoned of courle ; for it appears by the ftatLite of 
Marlbridge, cap. 26. that it was not done per feloniam^ig): 

yec 

(//) The reafon of rhis is, bccaufe was before the ftatute of Marlbridge^ 

the law (loth prefume, that after the that he who kild another per iufornt- 

\ear and day it cannot then be dilccrned, iiiuni, was In no danger of death. Kel. 

whether he died of the ihoke, or a 123. nor indeed could it be felony, it 

natural death. 5 f>. //'^f^V. 53. not being done yr.'/cc rtw/'wo. 4 Co. 124. ^^ 

(e) The like in the cafe of maihcm, The defign of that flatutc was quite of 

if a man ilrike at one, and milling him another nature, viz. that the country 

maihem another, i^ H. ". 14. a. fliould not be amerced where a man was 

[j) 1 1/7. 7. 13. «. per F'.ncux Ch. kild/vr;;;/or/«;;/ww,for at that time //;7/r- 

JuiL ?A Corone 129. 'Trcclaiuation 13. ^//V/;;/ peculiarly Signified the fecret pri- 

iz Jffif. pi-1\- ^"^te killing of a man; as, if he was 

(g) Here our author rightly fays, /.' found kild, but it was not known by 

ii.ppears by the ftatute o\ Marlbridge, v\ hom ; and thus it is defined by S/-^(5?o?;, 

that it was not felony, for that ftatute Lil/. ill. de corojia, cap. i. to be occiiltck 

only fuppofes it not to be felony, but cccifio , and in the laws of //fwrr 1. /. 92. 

does not make that not to be felony, mnrdritm homo dicchatur, c//J!/S inter- 

which was fo before, as fome have ima- fcHor Jicfciebanir ; and i7i 'Dialogo de 

gined. ; Co. h'ftit. 148, ^15. for it ap- Scaccarto, Lib. I. cap. 10. murdrum I- 

pears by Magna Chart a, cap. 26. which drm ejl, quod ab^condiluiii. 



40 Hifloria Placltonim Corona, 

yet the laws of England are fo tender of the life of man, 
and to make men very cautions in all their anions, that the 
party, tho his life be fpared, yet forfeits his goods> and mull 
expeft the king's grace to reftore them. 

There happend this cafe at Peterborough : Deer broke into 
the corn of A. and fpoiled it in the night-time ; A. fets his 
fervant to watch in the night with a charged gun at the cor- 
ner of the field, commanding him, that, when he heard any 
thing rulh into the ftanding corn, he Ihould Ihoot at that 
place, for it was the deer : the mafter, who was in another 
corner of the field, ruihed into the ftanding com ; the fer- 
vant according to his mafter's direction Ihot, and kild his ma- 
fter ; it was agreed on all hands, this was neither petit trea- 
fon, nor murder, but whether it were fimple homicide, or pet 
infortunium, was a 8;reat difficulty : Firlt, the Ihooting was 
lawful, when the deer came into the corn, it being no purlieu, 
nor proclaimed, or chaced deer ; again, the error of the fer- 
vant was caufed by the mailer's direction, and his own a£l:; 
but if it had been a ftranger, that had been kild, it had been 
homicide, and not mifadventure : on the other fide, the fer- 
vant \^^as to have taken more care, and not to have Ihot up- 
on fuch a token, as might have befallen a man, as well as a 
deer ; and therefore for the omiihon of due diligence, and 
better infpe£l:ion, before he adventured to flioot, it might a- 
mount to manflaughter, and fo be capital ; and this feems to 
be the truer opinion. 

But in the cafe of Sir William Han-kjxforth, related by Ba- 
ker in his chronicle of the time of Edward W. p. ii-^. (h\ 
he being weary of his life, and willing to be rid of it by another's 
hand, blamed his parker for fuflering his deer to be deifroyed, 
and commanded him, that he Ihould ihoot the next man, that he 
met in his park, that would not ftand or fpeak ; the knight him- 
felf came in the night into the park, and being met by the keep- 
er refufed to ifand or fpeak -, the keeper ihot, and kild him, 
not knowing him to be his matter : this feemiS to be no fe- 
lony, but excufable by the ttatute of MakfaS^ores in parcis (i) ; 

for 

(h) Silt anno 1471. and doth exprcfly enr.fl, " That if any 

OV This, ftatute was made the 21 £". r. " parker find a trcipaficr wandering 

a " within 



Hifioria Placitwiim Cofon^. 4 1 

for ths keeper was In no fault, but his mailer ; but, had he 
known him, it had been murder. 

As to matter of hiy:h treaion, where the life of the kin^ 
is concernd, it is not li4fe too eafily to admit an excuie by 
chance or misfortune ; tho fuch fa£l: cannot be treafon, that 
was purely cafual and in\'oluntary, tor there muft be a com- 
pajfm^y or imagining to make nc-dion ; yet a treafonable in- 
tention may be dilguisd under the colour of chance, and the 
fafety of the king's life is of higheft concernment. 

And therefore when Walter Tyrrel, with a glance of an ar- 
row from a tree involuntarily, as Matthen? Paris (k) tells us, 
kild William Rttfiis, it could not be treafon (/), becaufe there 
was no purpofe of any miilhief, and he Ihot at the deer by 
the king's command ; yet the fa6l was of inch a confequence, 
that he Hed for it, V/hich Was a circumilance, that might pro- 
bably infer, that there was fome ill intention, which might 
make him guilty of treafon, and not barely accident. Co. P. C. 
p. 6. 

Hiftory tells us, that upon a folemn juft, or turnam.ent ap- 
pointed by Hemy 11. king of France, upon the marriage of 
his daughter, the king himfelf would needs run, and com- 
manded the earl of Montgomery to run againft him ; the earl's 
lance breaking upon the king's cuirafTe, a fpljnter flew into the 
king's eye, and hit it, whereof he died : this was not trea- 
fon, becaufe purely accidental. 

M CHAP. 

" within his liberty, intending to do da- " deavouring to take him, he fliall not 
*' mage therein, and upon cry made to " be arraigned for the fame, nor fufFcr 
him to iland, he will not yield, but fle- " any punifhment.' S.'P.C. 13. ^. 



" eth ordefendeth himfelf with force, if (fc) />. 54. 

•' fuch parker kill fuch ofifender in en- (/; Cuftimicr de Normand. cap. 



14. 



42. Hijtoria Placitorum Coronce. 



CHAP. VI. 

Concerning ignorance, and hoiv far it pre- 
'vails, to excufe in capital crimes. 

IGnorance of the municipal law of the kingdom, or of the 
penalty thereby intiided upon offenders, doth not excufe 
any, that is of the age of dilcretion and compos mentis from 
the penalty of the breach of it ; becaiife every perfon of the 
age of dilcretion and compos mentis is bound to know the 
law, and prefumed fo to do ; Ignorantia eorum, qiu quis fcirc 
tenetur, non excujat. (a) 

But in iome caies ignorantia fnSii doth excufe, for fuch an 
ignorance many rimes malies the aft itfelf morally im^olun- 
tary ; and indeed many of the caies of misfortune and cafu- 
alty mentiond in the former chapter are inftances, that fall 
in with this of ignorance : 1 fhall add but one or tA\^o more. 

It is known in war, that it is the greateft offenfe for a fol- 
dier to kill, or fo much as to affault his general : fuppofe 
then the inferior ofHcer lets his watch, or fentinels, and the 
general to try the vigilance or courage of his fentinels comes 
upon them in the night in the pofture of an enem)^, (as fome 
commanders have too ralhly done) the lentind ftrikes, or Ihoots 
him, taking him to be an enemy ; his ignorance of the per- 
fon exculeth his offenfe. 

In the cafe (£ Levet indifted for the death o£ Frances Free' 
man, the cale was, that William Levet being in bed and aflecp 
in the night his ferv^ant hired Frances Freeman to help her to 
do her work, and about twelve of the clock in the nidit 
the lervant going to let c^ut Frances thought Ihe heard thieves 
breaking open tlie door ; fhe therefore ran up fpeedily to her 
matter, and informed him, that Ihe thought thieves were 
breaking open the door ; the mailer riling liiddenly, and ta- 
I king 

(_c.) Tkti-if. 543. ^. 



Hifioria Placitorum Corona. 45 



king a rapier ran down luddenlv ; Frances hid herfelf in the 
buttery, left Ihe ihould be diicoverd ; Leveis wife spying 
Frances in the buttery, cried out to her hufband, " Here they 
" be, that would undo us : " Levet runs into the buttery in 
the dark, not knowing Frances, but thinking her to be a 
thief, and thrufting with his rapier before him hit Frances in 
the breaft mortally, whereof Ihe inftantly died. Iliis was 
refolved to be neither murder, nor nianllaughter, nor felony. 
Fide this cafe cited by juftice jfones, P. i $ Car. i. B, R, Cro. 
Car. 538. CooA's cafe. 



CHAP. VII. 

Touching incapacities, or excufes by reafon 
of civil fubjedion. 



I Come now to thofe incapacities, which I have ftyled civil, 
and to confider, how far they indemnify and excufe in 
criminals, and criminal punifliments. 

And jfirft concerning that, which arifeth by reafon of civil 
fubie6lion. 

And this civil fubjeftion is principally of the fubjeft to his 
prince, the fervant to his mailer, the child to his parent, 
and the wife to her hufband. Somewhat I Ihall fay of each 
of thefe : 

I. As to the firjl of thefe fubjeflions, the fubjeSl to his prince ; 
it is regularly true, that the law prefumes, the king will do no 
wrong, ^neither indeed can do any wrong (a) ; and therefore, 
if the king command an unlawflil a6l to be done, the of- 

fenfe 

(ii) Co. Lit. 19. l. 



44 Hi'floria Placitorum Corbiite. 

fenfe of the inftmment is not thereby mdemnified (/>) ; for 
tho the king is not under the coercive power of the law, yet 
in many cafes his commands are under the dire£l;ive power of 
the law^ which confequently makes the a(3: itfelf invalid, if 
unlawful, and fo renders the inftrument of the execution 
thereof obnoxious to the punilhment of the law. Vide Stamf, 
P.Cioz.h. (c); yet in the time of peace, if two men com- 
bat together at barriers, or for trial of fkill, if one kill the 
other, it is homicide ; but if it be by the command of the 
king, it is faid(^), it is no felony. 1 1 H. 7. 23. 4. 

II. As touching the civil fubjedion of the child, or fer' 
ram ; if either of them commit an ail, which in itfelf is 
treafon, or felony, it is neither excufed nor extenuated as 
to the point of punilliment by the command of his mafter, 
or parent ; for the command is void and againft law, and 
doth not protedl either the commander or the inftrument, that 
executes it by fuch command, (e) 

III. As to the civil fubje6rion of the wife to the husband : 
tho in many cafes the command, or authority of the huf- 
band, either exprefs or implied, doth not privilege the wife 
from capital punilliment for capital offenfes • yet in fome cafes 
the indulgence of the law doth privilege her from capital punilh- 
ment for luch offenfes, as are in themfelves of a capital na- 
ture ; wherein thefe enfuing difterences are obfervable. 

I . If a feme coven alone without her hufband, and witl> 
out the coercion of her hulband, commit treafon, or felony, 
tho it be but larciny, fhe Ihall fuffer the like judgment and 
execution, as if llie were fole ; this is agreed on all hands. 
Siamf. P. C. Lib. I. cap. 19. i 5 £. 2. Corone 383. 

I 2. But 

CZ-j As if one man arreft another mere- In his abritlgment of this cafe, Ccrofic 

ly by the king's commandment, that 229. fays, that other jufHces in the time 

/liall be no cxcufe to him, but he is nc- of He7i)y VIII. denied this opinion of' 

verthelcfs liable to an aflion of falfc im.- Fiiietix, and held, that It w?.s felony to 

prifunment, 16 H. 6. F. Mvufirahm de kill a man in jufting and the like, not- 

fatti 182. I H. 7. 4. I. Ti. '■Prerogative withflanding the commandment of the 

^59- king 5 for that the commandment Is a- 

(c) Vide •BraBon, Lib. III. fZ,V aBio- gainft law. 5 Co. Ivjl. ^6, 160. 
jiilm, cap. 9. ^e) 2) a It. Ji'ft. cap. 157. K Edit. 

id) Ter Fmcux Ch. Ju{}. but ^roke 



Hifloria Placitorum Corona, 4^ 

2. But if llie commit larciny by the coercion of the hiii^ 
band, ihe is not guilty. 2 7 Ajf. 40. (/) ; and according to 
fome, if it be by the command of her hufband. Ibid, (g), 
which feems to be law, if her hulband be prefent {h) ; but 
not if her hufband be abfent at the time and place of the 
felony committed. 

3. But this command or coercion of the hufband doth 
not excufe in cafe of treafon, nor of murder, in regard of 
the heinoufnefs of thofe crimes. Mr. Daltons Jufi. Ca. 104. (/). 
And hence it was, that in the cafes of the treafons commit>- 
ted by Arden and Somerville (k) againlf queen Elizabeth both their 
wives were attaint of high treafon, tho their execution was 
fpared ; and yet they were only aflenters to their hufbands 
treafons, and not immediately adlors in it, and fo were prin- 
cipals in the fecond degree ; and upon the fame account the 
earl of Somerfet and his wife were both attaint, as acceffaries be- 
fore, in the murder and poiioning of Sir Thomas Overbury. (/) 

4. If the hufband and wife together commit larciny or 
burglary, by the opinion oi BraBon, Lib. III. cap. 32. §. 10. {m) 
both are guilty ; and fo it hath been pra6lifed by fome jud- 
ges, vide Dak. ubi fupra, cap. 104. and pofhbly in Ifri^lnefs 
of law, unlefs the aftual coercion of the hufband appear, fhe 
may be guilty in fuch a cafe ; for it may many times fall out, 
that the hufband doth commit larciny by the infligation, tho 
he cannot in law do it by the coercion of his A\'ife ; but the 
later pra61:ice hath obtaind, that if the hufoand and wife 
commit burglary and larciny together, the wife ihall be ac- 
quitted, and the hufband only convi6led ; and with this a- 
grees the old book, 2 E. 3. Corone 160. and this being the 
modern praftice and in favorem viu is fitteft to be followed ; 
and the rather, becaufe otherwife for the fame felony the 
hufband may be laved by the benefit of his clergy, and the 

N wife 

(f) F. Corone 199. Sra£ion de corona, (k) i y^nd. p. 104.. 
cap. 3i. (). 9. (I) Stat. T^rials, Vol. I. Tr. 28 £«? 29. 

. (g) ^'.oniam ipfa fiiperiori fno obedire (nt) And Se£l. 9. and Fleta, Lib. I. 

debet. Leg. hi£, I. ^-j. 'B. Corone 10%. caf.i,^. 6. 11, 15, 14. efpecially, .y/'/z/r- 

[):>) Becaufe the law fuppofes her to turn invcniatiir fub ClavihuiUxoris. Vids 

be then under the coercion of her huf- Srii£fon ^ Fleta, ibid, and LL. Cnuii, 

band. Kcl. 51. '• 74' 

(/) N.Ed'it. cap. li]. 



4^ Hiftor'ta Placitorum Corona. 



wife hanged, where the cafe is within clergy (») ; tho I con- 
'fefs this reafon is but of Imall value, for in manflaughter com- 
mitted jointly by hufloand and wife the hufband may have 
his clergy, and yet the wife is not on that account to be pri- 
vileged by her coverture. 

And accordingly in the modern praftlce, where the huf- 
band and wife, by the name of his wife, have been indifled 
for a larciny, or burglary jointly, and have pleaded to the 
inditlment, and the wife convi6led, and the hufband acquit- 
ted ; merciful judges have uied to reprieve the wife before 
judgment, becaufe they have thought, or at leaft doubted, 
that the indictment was void againft the wife, fhe appearing 
by the indictment to be a wife, and yet charged with felony 
jointly with her hufl^and. 

But this is not agreeable to la\\^, for the indi£fment flands 
good againft the wife in as much as every indiClment is as 
well feveral, as joint ; and as upon fuch an indi£lment the 
wife may be acquitted, and the hufband found guilty, fo t 
converfo the wife may be conviCled, and the hufband acquit- 
ted ; for the indiftment is in law joint, or feveral, as the fa£t 
happens ; and fo is the book of 15 E. 2. Corone 383. and ac- 
cordingly has been the frequent praftice. vide Dalt. uhi {up. 
cap. 104. where there are feveral inftances of the arraigning 
of hufband and wife upon a joint indiClment of felony ; 
which, if by law llie could not be any way guilty, had been 
erroneous, for the indi£lment itfelf had been infufficient : 
therefore, tho the former praftice be merciful, and cautious, 
it is not agreeable to law ; for, tho ordinarily according to the 
modern praCfice the wife cannot be guilty, if the hufband be 
guilty of the fame larciny or burglary ; yet, if the hufband 
upon fuch an indi£lment be acquitted, and the wife conviCt, 
judgment ought to be given againft her upon that indiCf- 
ment ; for every indictment of that nature is joint or feveral 
as the matter falls out upon the evidence. Vide 2 z £. 4. 7. {0) 
2- 5. But 

(n) The reafon of this is, becaufe a now ftands, flie may in all cafes have the 

woman cannot by law have the benefit fame benefit by the flatute of 5 ££f 4 ^ 

of the clergy. 1 1 Co. 19. b. yet in Fitz. £ff M. cup. 9. §. 7. as a man may by his 

Corone £t6\.'\t. was admitted, that a woman clergy. 
might claim clergy j however, as the law (p) ^- Chartre ie pardon 51. 



Hijioria Placitorum Coron^e. 47 

' 1 11. I ■ ■ ■■—■■II- ■■ ■■ — ' ' " ^M^^— I ^ --I .. I ■ ., ■ , , ■■ . ■.■■■^i.l ^ 

5. But if the hufband and wife together commit a trea- 
fon, murder, or homicide, tho Ihe only affented to the trea- 
fon, they Ihall be both found guilty, and the wife Ihall not 
be acquitted upon the prefumption, that it was by the coer- 
cion of the hufband, for the odiouinefs, and dangerous con- 
fequence of the crime ; the fame law it is, if Ihe be accef- 
fary to murder before the fa£l. 

6. If the hufband commit a felony or treafon, and the 
wife knowingly receive him, flie Ihall neither be acceflary af- 
ter as to the felony, nor principal as to the treafon, for fuch 
bare reception of her hufband ; for Ihe is juh potefiate viriy 
and Ihe is bound to receive her hufband ; but otherwife it is, 
of the hufband's receiving the wife knowingly after an offenfe 
of this nature committed by her. (p) 

" M. 37 £. 3. Rot. 34. Line, coram Rege. R icardus Dey iSJ* 
" Islargeria Uxor e'ps indi^atipro receptamento feloniim ; Margeria 
" dicit^ quod indiBamentum pr^ediB' juper pr^diBam Margeriam 
faBim minus fufficiens <?/?, eo quod pr^d' Margeria tempore 
quo ipfa diBos f clones receptajfe^ feu els con/entire dehuijfety 
fuit coDperta pr^ed. Ricardo riro juo, iff adhuc efi, isf om* 
" nino Jul potefiate Jua, mi ipfa in nuUo contradicere potuit ; 
" iif ex quo non inferitur in indiBamcnto pr.cdiBo, quod ipja a- 
" liquod malum fecit, nee eis confentivit, feu ipfos felones recep- 
tavit, ignorante viro fuo, petit judicium, Ji ipja, vivente viro 
fim, de aliquo receptamento in pr^fentia viri fui occafwnari 

" po(jit. ^oftea vifo iff diligent er examinato indiBamcnto pr^' 

*' diBo fuper pr^fatam Margeriam faBo, videtur curi^, quod 
" indiBamentum illud minus fufficiens eft ad ipfam inde ponere 
*' refponjuram : Ideo ccffct procejfus verfus earn omnino, iffc. 
Upon which record thele things are obfervable; 
I . That the w^ife, if alone and without her hufband, may 
be acceifary to a idony poft faBum. z. But Ihe cannot toge- 
ther with her hufband be acceffary to a felony poft faBum ; 
for it ihall be intirely adjudged the a£l: of the hufband ; and 
this is partly the realon, why Ihe cannot be acceffary in receipt 
cf her hufband being a felon, becauie ihe is fuh potefiate viri. 

3. That 

(/>) Co. T. C. 108. 



u 



48 Hifioria Placitorum Corojiie. 

3. That In this cafe llie was not put to plead to the mdi£l:- 
ment not guilty, but took her exception upon the Indi£lment 
krelf ; and fo note the diveriity between an indi6lment of fe- 
lony, as principal, and the Indi6lment of her, as acceflary af- 
ter ; for in the former cafe Ihe lliall be put to plead not guilty 
to the indi(9:ment, tho It appear in the body tliereof, that 
fhe is covert. 4. That yet the Indi61:ment flood good, as to 
the hufband ; and upon this confideration, tho it is true the 
hufband and wife may be guilty of a treafon, as is before 
lliewn, yet it feems, Ihe Ihall never be adjudged a traitor 
barely for receiving her hufband, that is a traitor, or for re- 
ceiving jointly with her hufband any other perfon, that is a 
traitor, unlefs ilie were alfo confenting to the treafon, for it 
fliall be intlrely adjudged the a£l: of her huftiand. 

It is certain, a feme covert may be guilty of mifprilion of 
treafon committed by another man than her hufband ; but 
whether flie can be guilty of milprifion of treafon, if fhe 
knows her hufband's treafon, and reveal it not, is a cafe of 
fome difficulty : on the one fide the great obligation of duty 
ilie owes to the fafety of the king and kingdom, the horrld- 
nefs of the oflenfe of treafon, and the great danger, that 
may enf ue by concealing it, feems to render her guilty of mif- 
prilion of treafon. If Ihe fhould not deteft it ; on the other 
fide, it may be faid, fhe is fiib potefiate viri, fhe cannot by 
law be a witnefs againft her hufband, and therefore cannot 
accufe him. Idea qiure. But certainly. If Ihe confented to the 
treafon of her hufband, tho he were the only a£lor in it, 
fhe Is guilty as a principal, and hath no privilege herein by 
her coverture, as is before Ihewn. 



CHAP. 



Hijioria Placitormn Coronce. 49 



CHAP. VIIL 

Concerning the c'roii incapacities hy compul- 

fion and fear. 



I join thefe two incapacities tos;ether, becaiife they are much 
of the lame nature, as to many purpoies ; and how far 
thefe give a privilege, exemption, or mitigation in capital pii* 
nilhm.ents, is now to be coniidered. 

Firfl^ There Is to be obfervd a difference between the 
times of war, or public inliirre(3:ion, or rebellion, and the 
times of peace • for in the tim.es of war, and public rebel- 
lion, when a perfon is under fo great a power, that he cam 
not relift or avoid, the law In iome caies allows an impu- 
nity for parties compeld, or drawn by fear of death, to do 
fome a£ls in themlelves capital, which admit no excufe in the 
time of peace. 

M. 2 I jE. 3 . coram Rege. Rot. i o i . Line. " Walter de A- 
'' lyngton, and divers of his confederates at St. Botolph's Re- 
" giant pot e flat em affumentes, ^ ut de Guerra injur gent eSj 
*' quendam Thomam de Okeham jtitorem in capitaneum, ^ majo- 
" rem jimm eligerimt\ feized on two fliips, and took away 
the corn {a) ; appointed a bell to be rung (/>) ; and command- 
ed, that at the ringing thereof ipjt iD" eorum qiiilibet ejfent pa- 
ratij ^Sfc. " Et plures homines vilU pr.<diB;£y qui ad malejicia 
" fua con/entire noluerunt, ceperunt, ilf eos jibi jurare fecenmt 
" ad imprifas fuas manutenendas." They were arraigned up- 
on the indi£l:mient, and committed : " ////, qui coaSii fuerunt 
" jurare^ dimittuntur per manucaptionem ; i^ illi, qui receperunt 
" dcnarios, pctunt quod, ex quo patet per indiB amentum prx- 
" diHum, quod ipfi coaBi fuerunt recipcre denarios contra vohm- 
*' tat em Juam, pctunt^ quod pojjlnt quiet i recedere ', iff confide' 

O " ratum 



{(t) One liurif^red and twenty qu:'.rters (h) ^tavdam cr.mraunem campaiiat» 
of corn, vi\ac'-,6l. ordiua-jeruH! Vuifari. 



^o Hijloria Placitorum Corona. 

" ratim efl per curiam^ quod nihil mali in his reperitur ; fed 
*' quia curia nondum advifatur, dies dams efl per manucaptionem ; 
*' ideo venit jurata" I find no further proceeding againft 
them. 

M. 7 H 5. coram Rege. Rot. 20. Heref. cited Co. P. C- p- 10. 
Thofe, that fupplied with vidluals Sir John Oldcaftle, and his 
accomplices then in rebellion, as is faid, were acquitted by- 
judgment of the court ; becaufe it was found to be done pro 
timore mortis, iff quod recejferunt, quam cito potuerunt : note, 
it was only furnilhing of vi£luals, and pro timore mortis, 
which excufed them ; for after the battle of Eve/ham in 4 9 
H. 3. when that prudent aft was made for the fettling of the 
kingdom, called DiBum de Kenilrvorth, thole, that were drawn 
to alhil the barons againll the king, tho they were not put 
into the rank of thofe, that paid five years value, of their 
lands for their ailiftance, 7;/^. thofe, that gratis, iff volunta- 
Tie, ^ fion coaBi miferunt fervitia fita contra regem, is^ ejus fi' 
Hum (c); yet, it ieems, they were put to a Imaller mul6lj for 
by the i 2th, i 3th, 14th, and i 5th articles: " CoaBi, vel me- 
tu duBi, qui venenmt ad belli, nee pugnaverunt, nee male 
fecerunt ; impotentes, qui ri vel metu coaBi miferunt fervi' 
tia fua contra regem, -vel ejus filium ; coaBi, vel metu duBi, 
qui fuerunt depr^tdatores, iff cum principalihus pr^donibus pr^- 
dationes fecerunt, iff quando commode potuerunt, recefferunt, 
" iff ad domos redierunt ; \jmptores fcienter rerum alienarum 
valorem bonorum, qus emerunt, reflituant, iff in mifericor- 
dia domini regis fint, quia contra juflitiam fecerunt, quia rex 
inhibuit, jam dimidio anno elapfo ; ] illi, qui ad mandatum^ comi- 
" tis Leyceflri<e ingrejfi funt Northampton, ncc pugnaverunt, nee 
" malum fecerunt, fed ad Ecclefam fugerunt, quando regem veni' 
" entem viderunt, iff hoc fit attinflum per bonos, folvant, 
" quantum valet terra eorum per dimidium annum ; illi, qui ex 
" jcodo comitis tenebant, fint folum in mifa-icordia domini regis : 
I impotentes, 

(c) Nor into tVie rank of thofe, who " & complicium fuorum, attrahendo ho- ■ 

by lies and falfliocd had drawn off others ' mines per mcndacia Si falfitatcs, inlH- 

to the earl of Le/cejler's party, and were " gando parti comitis & fiiorum, detra- 

puniflied with a mulft of two years va- " hendo parti regis & fihi fui, puni.mtur 

lue, as by ■frtic.ii. " Laici manifeRe " per quantum valet terra corum per 

" procurantcs ncgctia comitis Leyccltria: " daos anr.cs.'' 



it 
a 
a 
u 



cc 






Hiftoria Placitorum Corona. ^i 

impotentcs, iy alii homines^ qui nihil malt fecerunt^ flatim 

rehaheant terras fuas, ^ damna rccuperent in curid domini 

7'egis. 

But even in fiich cafes, if the whole circumftances of the 
cafe be fuch, that he can fiifficiently refill:, or avoid the power 
of fuch rebels, he is inexcufable, if upon a pretence of fear, 
or doubt of compullion, he afllft them. 

Now as to times and places of peace. 

If a man be menaced with death, unlefs he will commit 
an 2lQ. of trealbn, murder, or robbery, the fear of death doth 
not excufe him, if he commit the fa£l: ; for the law hath pro- 
vided a fufficient remedy againft luch fears by applying him.- 
felf to the courts and officers of juftice for a writ or pre- 
cept de fcmritate pads, (d) ^ 

Again, if a man be defperately affaulted, and in peril of 
death, and cannot other wile efcape, unleis to fatisfy his af- 
failant's fury he will kill an innocent perfon then prefent, the 
fear and a£lual force will not acquit him of the crime and 
punilKment of murder, if he com.mit the fa£l: ; for he ought 
rather to die himfelf, than kill an innocent : but if he cannot 
otherwife five his own life, the law permits him in his own 
defenfe to kill the alfailant ; for by the violence of the af- 
fault, and the offenfe committed upon him by the alTailant 
himtelf j the law of nature, and neceifity hath made him his 
own protestor cum dehito moderamine inculpau tmeUj as Ihall 
be farther lliewed, when we come to the chapter of homicide 
je defendendo. (*) 

But yet iarther,^ it is true in cafes of war between fov^- 
reign princes the law of nations allows a prince to begin ho- 
ftility with fuch a prince, that deligns a war againft him ; 
and if the fear be real, and upon juil g;round, non tantum de 
potentia fed ilf de Animo. Grot, de jure beUi ^ Pads, Lib. II. 
cap. 11. §. 5. he may prevent the other's a£tual aggreilion, 
and need not expet£l, till the other aftually invade him, when 
poflibly it may be too late to make a fafe defenfe 5 and the 
reafon is, becaule they are not under any iuperior, that may 

by 

■ (d) See this writ in the Reg'Jler-, ful. 83. h. F. N. S. Vet. Edit. 79. N. Edit. 177. 



^2 HiJJoria Placitorum Coron^e. 



by his procefs or interpolitlon fecure the prince, againft fuch 
a jiift fear ; apd therefore in fuch cafe the law of nations al- 
lows a prince to provide for his own fafety. 

But it is otherwife between fubje£ls of the fame prince : 
If A. fears upon juft grounds, that B. intends to kill him, and 
is affured, that he provides weapons, and lies in wait fo to do ; 
yet without an aflual afiault by B. upon A. or upon his 
houfe, to commit that fa£l, A. may not kill B. by way of 
prevention ; but he muft avoid the danger by flight, or other 
means ; for a bare fear, tho upon a juft caul'e, and tho it be 
upon a fear of life, gives not a man power to take away the 
life of another, but it muft be an aftual and inevitable dan- 
ger of his own life ; for the law hath provided a fecurity for 
him by flight, and recourfe to the civil magiftrate for pro- 
te6lion by a writ or precept de femritate pads : and thus far 
touching the privilege by reafon of compuliion or fear. 



CHAR IX. 

Concerning the privilege by reafon of ne- 

ceffity. 



A Ltho all compuliion carry with it fomewhat of necellity, 
■^ -*■ and abates fomewhat of the voluntarinefs of the ail 
that is done, yet there are fome kinds of neceffities, that are 
not by any external compuliion or force. 

Touching the neceffity of felf-prefervation againft an inju- 
rious afiault fomewhat hath been laid in the laft chapter, 
and more will be faid hereafter in its due place : I Ihali pro- 
ceed therefore to other inftances. 

i llie 



Hiftoria Placitorum Corona. 93 

The neceffity of the prefervation of the peace of the king- 
dom by the apprehending notorious malefaftors excufeth 
fome a£ls from being felony, which in the matter of them 
vathout fuch neceffity were felony. 

If a thief reiift, and will not fuffer himfelf to be taken 
upon hue and cry or pm-fuit, jufiiciari fe nolit permktere, if 
he be kild by the purfuants, it is no felony {a) j de quo vide 
intius infra. 

By the ftatutes of 3 ^ 4 F. 6. cap. 5. and i Mar. cap. 1 2. 
If there be a riotous affembly to the number of twelve aflem- 
bled to commit the diforders mentioned in thofe a£ls, the 
juftices of peace, the IherifF, mayor, or other officer of any 
corporation, il^c. may raiie a power to fupprefs and appre- 
hend them J and, if they difperfe not upon proclamation, if 
any of the rioters be kild, or maimed, or hurt by the juftices, 
i^c. or thofe aflembled by them to fuppreis the riot, it is by 
this a£l dilpuniffiable. 

It is true, this a£l {b) continued only during queen F//^^- 
beth'^ life, and is now expired (c) ; but altho, perchance, as 
to the killing of fuch perfons, as do not prefently return upon 
proclamation to their homes, it needs the aid of an a6l of 
parliament to indemnify them ; yet if they attempt any rio- 
tous aft, and cannot be otherwile fuppreft, the IherifF, or 
juftlce of peace may make ufe of fuch a force upon them for 
prelervation of the peace, as well by the Common law, as 
by the ftatute ; ([uod vide in Anderfons Rep. part 2. n.49. p.6'j. 
Burtons cale in fine ; and the ftatute of i 3 H 4. cap. 7. in 
principio, and i H. <y. cap. 8. whereby all men are bound up- 
on warning to be affiftant to the ffieriff and juftice for the 
lupprellmg of riots even by force, if it cannot be otherwife 
effected ; fo that the claufes touching this matter in the tem- 
porary ftatutes of 3 i^ 4 £. (5. and i Mar. are but purfuant to 
the law and former ftatutes for neceffity of prelerving the peace. 

P Some 

{a) See Leg. Tna, I. 55. nued during the life of queen Mary, 

(jb) viz. I Mar. cap. 12. for 5 S£? /^Ed. and by i Eliz. cap. 16. was continued 

£. cap. J. was repeald by i Mar. cap. 12. during her life alfo, and has never fines 

{c) It was at hrft made to continue on- been revived ; but in i Geo. i. cap. 5. 

ly till the end of the next feflion, but a new aft was made to much the fame 

was afterwards by fcveral new a£ls conti- purpofe, which is perpetual. 



^4 Hifloria Placitorum Corona. 

Some of the cafulfts, and particularly Covarruvias, Tom. I. 
Dc flirt i i^ Rapine reftitutione, §. 3,4. ^.473. and Grotius de 
jure belli ac pads, Lib. 11. cap. 2. §. 6. {d\ tell us, that in 
cafe of extreme neceflity, either of hunger or clothing, the 
civil diftribiitions of property ceafe, and by a kind of tacit 
condition the firlf community doth return, and upon this 
thofe common affertions are grounded ; " ^licquid neccffitas 
" coo^it, dcfendit.^' " Necefjitas efl lex temporis ^ loci.'' 
" In cafu extreme necejjitatis omnia junt communia : " and there- 
fore in fuch caie theft is no theft, or at lealt not punilhable, 
as theft ; and lome even ol our own lawyers (e) have aflcrted 
the fame ; and very bad ufe hath been made of this concef- 
fion by fome of the Jeluitical cafuifts in France, who have 
thereupon advifed apprentices, and fervsnts to rob their ma- 
fters, when they have judged themfelves in want of neceffa- 
ries, of clothes, or vidluals ; whereof, they tell them, ihey 
themfelves are the competent judges ; and by this means let 
loole, as much as they can, by their do£lrine of probability, 
all the ligaments of property and civil fociety. 

I do therefore take it, that, where perfons live under the 
fame civil government, as here in England, that rule, at leaft 
by the laws of England, is falfe ; and therefore, if a perfon 
being under neceliity for want of vi£luals, or clothes, fhall 
upon that account tlandeltinely, and animo furandi Ifeal an- 
other man's goods, it is felony (/), and a crime by the laws 
of England punilhable with death ; altho the judge, before 
whom the trial is, in this cafe (as in other caies of ex- 
tremity) be by the laws of England intrufted with a power to 
reprieve the offender before or after judgment in order to the 
obtaining the king's mercy. 

For 1 . Mens properties would be under a flrange infecurity, 
being laid open to other mens necefTities, whereof no man 
can pollibly judge, but the party himfelf. 

2. Becauie by the laws of this kingdom {g) fufficient pro- 

vilion is made for the iupply of fuch necelfities by collections 

2 for 

{d) See Ttijf. de jure vattirec. Lib. II. 'Plo-ivd. i8. h. 19. a. Tialt. Jvfl. cef. 59. 
cc.f.6. §. d. (f) Ste Walton iibi fiipra. 

ie) Sritoi;, caj>. 10. CromJ>(. 53. a. (g) /^-^ Eliz. caf. z.^c. 



Hi ft or i a Placitorum Cor once. ^^ 

for the poor, and by the power of the civil magillrate ; and 
confonant hereunto leems to be the law even among the Jews^ 
if we may believe the vriiell of kings. Pro'v^rh v'l. ^ o, 21. 
" Men do not defpife a thief, if he fled to fatisfy his foul, when 
" he is hungry ; but if he be found-, he Jhall reflore feven-foldy 
" and fljall give all the fubflance of his houfe : " It is true, 
death was not among them the penalty of theft, yet his ne* 
ceffity gave him no exemption from the ordinary punilhment 
inflifted by their law upon that oftenie. {h) 

Indeed this rule, " in cafu extreme neceffitatis omnia funt 
" communiay^ does hold in iome meafure in fome particular 
cafes, where by the tacit conlent of nations, or of iome par- 
ticular countries or focieties, it hath obtaind. 

1 . Among the Jews it was lawful in cafe of hunger to pull 
ears of Handing corn, and eat, Math, xii, i . ^c. {i) and for 
one, that paffed through a vineyard, or oliveyard, to gather, 
and eat without carrying away. Deut. xxiii. 24, 25. 

2. By the Rhodian law (A), and the common maritime cu* 
ftom, if the common proviiion for the lliip's company fail, 
the mafter may under certain temperaments break open the 
private chefts of the mariners or palTcngers, and make a di- 
Itribution of that particular and private proviiion for the pre- 
lervation of the iliip's company. Vide Confolato del Mari^ 
cap. z<)6.(l) Le cuftomes de la Mere, ^-77. 

3. Nay, I find, among our Englijh voyages to the Wefl' 
Indies deicribed by Hackluit, that it was a received cuftom, 
that if a Ihip wanted necelfaries, and the inhabitants of the 
continent would not furniifi them for money, they might, by 
the ula^e ct the iea and nations take proviiion by force, 
making the inhabitants realonable fatisfaftion ; for in thefe 
caies the common conlent of nations hath made it lawful, 
and therefore it is lawful • i . becauie neceflary in extremity, 

2. be- 

(/') But their ordinary puniflimcnt be- it only on account of its being done on 

Ing only pecuniary could afFefl: him only, xhc fahhatb-day, Mark xi. iS.SS'c Luke 

when he was in a condition to anfwer it; vi. i, iSc. 

and therefore the fame reafons, which (k) Vide 'Dig. Lib. XIV. tit. z. He 

would jultify that, can by no means be lege Rbodia de jaEiti, I. 2. §.2. ;'« finCt 

extended to a corporal, much lefs to a Leg. Giilielwi Concftieft. cap. 58. 

capital punidiment. {1} Printed at Venice 1584. in /^to. 

(i) For the •I'harifies objected againft 



^6 HiJJoria Placitorum Corona. 

1. becaufe there are no other means to obtain it by an appli- 
cation to fuperiors ; but were this done by EngUjh mariners 
upon the En^li/b Ihore, where both are under the fame civil 
magiftrate, the cafe would be otherwife, becaufe capable of 
another remedy. 

It is not lawful voluntarily to afliil the king's enemies with 
money or provifion, for it is an adhering to the king's ene- 
mies, and fo treafon within the letter of the ilatute of 25 
E. 3. but yet, if the king's enemies come into a county with 
a power too ilrong for the county to refift, and will plunder 
the country, unlefs a compofition be made with them, fuch 
a ranfoming of themfelves is fo far from being treafon, that 
it hath been allowed as lawful, i. In refpe£l of the extreme 
neceffity. 2. Becaufe it is a lels detriment to the country, 
and a lefs fupply to the enemy, than that plunder would be j 
and for that purpofe I ihall let down the cafe at large. 

M. i^E.2. B.R. Rot. 60. Dimelm. " Fiacitum de tranf- 
" grelT. coram A. D. de Brome & fociis luis jufticiariis domini 
" regis in epiicopatu Dunelm. fede vacante anno decimo regni 
" fui mittitur hue propter errores, &c. Juratores dicunt, quod 
" Scoti inimici & rebel les regis predict, die Martis in fefto 
" SanftiE Catharine virginis anno regni regis nunc nono in- 
grefli fuerunt terram epifcopatus Dimclm. ea de caufa, ut ip- 
1am deftruerent, & quod omnes de communitate epifcopatus 
pricdifti tunc apud Dimelm. exiftentes, volentes przcavere 
di£lorum inimicorum malitiam, ordinarunt, quod unufquil- 
que illorum pricltarent lacramentum corporale ftare ordina- 
tioni, qua: pro proficuo communitatis pr2edi£l2E continge- 
ret ordinari, qui quidem WilUclmus de Heberne jurat' fuit 
cum aliis, bzc. Item quod poft conluluerunt facere finem 
cum pnedi^lis inimicis, & cum eis fecerunt finem de mille 
& fexcent' marc' j quam quidem lummam oporteret folvi 
incontinenti, per quod, quia non habuerunt pecuniam prefto, 
" ordinarunt, quod quidam de communitate prxdi6la irent de 
" domo in domum infra ball. Dunelm. &: extra, & perfcru- 
" tarent, ubi denarii elTent in depofito, & ubicunq; denarii 
" hujufmodi invenirentur, caperentur ad folutionem di6li 
" finis feftinand', quoufq; levari pofiit de communitat. prxdicS. 
2 *' & la- 



(( 

a 

it 
a 



Hifloria Placitonim Corona. 97 

" & fatisfieri illis, quorum denarii lie capien Ji ilierimt ; et 
" quod pricdiftus ]Villielmiis de ICellaive iimul cum quodam 
" David de Rotheber jurat' ad perlcrutandum in forma pric- 
" difta, venit ad pra;di(9:as domos, ^ cillam & 70I. de pro- 
" priis denariis iplius IVillicImi de Heberne in cilta prxdicla in- 
" ventas cepit & afportavit, &:c. et juratores requiiiti, ii 
" pra;di£lus WilUelmus de Heberne conlentiebat captioni prx- 
" diftorum denariorum, dicunt, quod non, & quia comper- 
" tum eft, Szc. quod, ubi pnv:di£la ordinatio fuit fa6la de 
" denariis in depolito perlcrutand' & capiend', prxdift' Wil- 
" llelmiis de Kcllaive limul, tSTc. cepit denarios prxdidV, qui 
fuerunt in domo & propria cuftodia prxdifti WilUelmi de 
" Heberne & contra voluntatem kiam, ^ etiani pro eo, 
" quod videtur curix*, quod prxdicl' WilUelmus de Heberne om- 
" nino elTet fine recuperare, quoad denar' iuos pra^didV, nil! 
" effet verfus pra^fat' Willi clmiim de Kellaive, Szc. qui prxdiftos 
denarios in torma pni^didla cepit ^ alportavit, conlideratum 
eft, quod pra;di6l. WilUelmus de Heberne recuperet verfus prx- 
di£l. WHlielmum de Kellarve pra:diclos denarios & dampna 
fua, qua; taxantur ad c. s. &: idem Williclmus de KcUaxve 
committatur goak, ^'c. prretextu cujus recordi ad lei£lani 
pra;di£li WilUelmi de Kellaive^ alTerentis errores & defe6lus in 
pncdi£tis recordo & proceilu interefle, mandatum fuit e- 
piicopo Dunelm. quod Icire fac' pra;di£lo Willielmo de He- 
berne, Szc. qui non venit. 

" Ideo proceflum eft ad examinationem recordi per ejus 
defaltum, &: aflignat hos errores, primum, quod nihil fecit 
contra pacem regis, nee denarios illos cepit vi ^ armis, 
maxime cum pr;i;di6lus WilUelmus de Heberne juratus fuit 
ftare ordinationi pra:di(I:l:'.c, & quod ipfe WilUelmus de Kellarve 
per facramentum pnuhihitum injunflus fuit icrutari & de- 
narios prxdi£los capcre ; & non eft conlonum, quod diclus 
Heberne recuperaret pncdi^los denarios & dampnum contra 
" aflenfum tV juramentum luum proprium, nee quod iple 
" KeUawe committeretur gaolx'. 

" Item in hoc quod julKc' fundaverunt judicium fuum, 
quod di£lus Heberne non poilct habere iuum recuperare de 
denariis pra:di£Hs, cum illutl habere pofTet direclc vcrtus 

Q_ " com- 



Li 



a 
u 
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a 
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a 
a 

a 
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(.(. 
u 
(.(. 
u 
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9 8 Hifloria Placitorum Cor on ^e. 



communitatem virtute ordinationis & conceliionis prscdi6la- 
rum, fo. ob quos errores hie in judicio recitatos conlidera- 
tum ett, quod erronice in primo judicio procelTum ell, & 
quod idem Kellarve a gaola deliberetur, Sc totus procelFus 
" evacuetur, Stc." 

In Pajch. I 5. Rot. 1 7. " Patet, quod Scoti cum hominibus 
" de Rippon iimiliter concordarunt pro mille marc', ne villa 
" comburctur." 

Nota^ this was an a£l done for the fecurity of the c ountry 
in a time of aftual war and invafion by enemies, and there- 
fore rendred that by-law and the execution thereof jultiliable 
by reafon of that neceflity, which would hardly have done 
it in time of peace. 2. But that, which this record princi- 
pally evidenceth, is, that fuch a fupply of the king's ene- 
mies upon inch a neceflity in a time of w^ar, and to prevent 
the devaluation of the country, was not taken at all to be an 
adhering to, or treafonable aiding of the king's enemjes. 



CHAP. X. 

Concerning the offenfe of high treafon, the 
perfon againfl "whom committed, and the 
reafon of the great nefs of the offenfe', and 
touching alligeance. 

HAving premifed thefe general obfervations relating to ^W 
crimes, that aij-e capital, and their punilliments, I fliall 
now defcend to coniider of capital crimes particularly, and 
therein firfl; of high treafon. 

And yet, before I deicend to the particulars thereof, I 
Ihall premife alfo fome things in general touching alligeance, 
iince the fpecincation of this ofFenie conlifts principally in this 
aggravation, that it is contra, ligeantU Ju.-c d'ebltum. 

2 The 



Hifloria Placitorum Corona. 99 



The offenfe of high treafon is an ofFenfe, that more im- 
mediately is againft the perion or government of the king ; 
and the greatnefs of the offenfe, and the fev-^erity of the pu- 
nilhment is upon thefe two realons. 

1 . Becaufe the fafety, peace, and tranquillity of the king- 
dom is highly concerned in the fafety and prefervation of the 
perfon, dignity, and government of the king ; and therefore 
the laws of the kingdom have given all polTible fecurity to 
the king's perfon and government under the fevereft pe- 
nalties. 

2. Becaufe as the fubje£l hath his prote£lion from the 
king and his laws, fo on the other fide the fubje61: is bound 
by his alligeance to be true and faithful to the king ; and 
hence all indi6lments of high treafon run proditorie) as a 
breach of the trull, that is owing to the king, contra ligean*- 
tU fu£ debitUMy againft that faith and alligeance he owes to 
the king, and contra pacem domini regis, coronam, ^ dignita- 
tem ejus. 

And hence it is, that if an alien enemy come into this 
kingdom hoftilely to invade it, if he be taken, he Ihall be dealt 
with as an enemy, but not as a traitor, becaufe he violates 
no truft nor alligeance ; refolved in the lord Herife's cafe. 
Co. P. C. cap. \. p. 1 1. "] Co. Rep. 6. a. Perkin WarbecJCs cafe. 

But if an alien, the fubjefl: of a forein prince in amity 
with the king live here, and enjoy the beneht of the king's 
protedlion, and commit a treafon, he lliall be judged and 
executed, as a traitor ; for he owes a local alligeance. 7 Co. 
Rep. 6. the cafe of Stephano Ferrara {a) a Portugueze ; and the 
indidlment Ihall not run contra naturalem dominum, but con- 
tra dominum jimm, and conclude contra ligeanti^ fiue debitum, 
and fuch an alien v/as compellible to take the oath of allige- 
ance in the leet. 2 Co. Inflit. p. 121. (b) 

If a merchant fubjeft of a foreign prince in hoftility with 
our king come hither, after the war begun, without the king's 
licence, or lafe condudil, inch a perfon may be dealt with as 
an enemy, vini taken, and ranfomed. Mag. Chart, cap. 3 o. (c) 

By 

(a) And EmuKjtel Zc'xes'T'iiicco. Hill. (h) Mirror de jtijlice, caj;. 5. §. i. n.6. 
'^6 Eliz. (c) i Co. Jnftit. 58. 



6o Hifhria Placitorum Corona:. 

By that ilatute merchants of an hoftile country found in 
this realm at the beginning of the war Ihall be attached with- 
out harm to their body or goods, till it be knowli, how the 
Englifly merchants are ufed in the hci^hle country ; and if the 
Englijlj merchants be well ufed tliere, theirs IhaJl be likewife 
ufed here ; fo that in this cafe fuch merchants, tho alien e- 
nemies, have the benefit of the kiuL^'s prote6lion, and io owe 
a ItK'al alligeance, which if they A^iolate, they may be dealt 
with as traitors, not as enemies, for they have the advantage 
of the king's proteftion, as well as his other fubjefts ; yea, 
it feems alio, that if the fiibje6l of a forein prince lives 
here as a private man, and then war is proclaimd betwixt 
our king and that forein prince, and yet that alien con- 
tinues here in England without returning to his natural fove- 
reign, but under the cover and protection of the king of 
England commits a treaion, he ihall be judged and executed 
as a traitor ; for by continuing here he continues the owning 
of his former local alligeance. 

Yet for the greater fecurity in the times of hoftility be- 
tween this and forein kingdoms, elpeclally that of France, 
there went out precepts under the great feal to arreft all thofe 
of that hoftile kingdom, until they gave furety, quod fe bene 
gerent erga regem, iSf" quod fua bona non transferent fine licen" 
tia regis, iy quod literas ant nuncios non mittent ad partes eX' 
ternas, nee aliquid contra pacem attempt abiint. Rot. Vafcon. 1 8 
E. II. M. 24, 23 "^ 2 I. Dorfo. And fometimes thofe aliens 
were conftraind aftually to fwear fealty to the crown of £«»•- 
land in the times of hoilility, and thereby to fuperadd an 
actual alligeance to that local alligeance, which they had be- 
ing under the king's protection as fubjeCts, tho in truth they 
were the natural iubjeCts of the hoftile prince. Pat. \^ H.6. 
part. 2. m. 34 <t5'' 3 5. and, if they rcfuled, were either imprl- 
ioned, or expelled the kingdom. Vide infra cap. i 5. 

And upon the lame account it is, that, tho there be an 
ufurper ot the crown, yet it is treafon for any fubje£t, while 
the ulurper is in full pofTellion of the lov^ereignty, to prac- 
tile treaion againft his perfon ; and therefore, altho the true 
prince regain the iovercignty, yet fuch attempts ?gair.ft the 
2 uiurper 



Hijioria Placitonim Cor once, 6 1 



ufurper in compaffing his death have been puninied as trea- 
fon, unlefs they \\'€re attempts made in the right of the 
rightful prince, of in aid or affiftance of him, becaiife of the 
breach of ligeance, that was temporarily due to liim, that 
was king de faBo ; and thus it was done 4 E. 4. 9 E. 4. i . (d) 
tho H. 6. was declared an uiurper by a£l of parhament i E. 4. 
and therefore king Edward IV. punilhed Ralph Gray with de- 
gradation, as \yell as death, not only for his rebellion a2;ainft 
himfelf, but alfo pur caiije de fon perjury i^ doublertefs, qil a- 
voit fait al roy H. 6. 4 £. 4. 20. 

And becaufe high treafon is faid to be contra UgeantU dehh 
turn, it will not be amils to premife fomething touching alli- 
geance and its kinds, referring myfelf to 7 Co. Rep. Calvins 
cafe, in relation to what is here omitted touching it. 

Alhgeance therefore due to the king is of two kinds: i. O- 
riginal, virtual, and implied. 2. Expreit, and declard by 
oaths or promifes. 

The virtual or implied alligeance is that, which the fub- 
je£l: owes to his fovereign antecedently to any exprefs pro- 
mife, oath, or engagement : this is that, which the Cuftumer 
de Normandie mentions cap. 13. Aliance ^ la loyaulte de tons 
jes homes de touts la contree, par quay Us font tenus a lui donner 
conjcil is" ayde de leurs propres cotps contre toutes perjonnes qui 
peuvent viver ^ mouryr, i^f Joy garder de lui nuyre en toutes cho- 
fes ne de Jouflenir in aulcune choje la par tie de cculx qui partem 
contre luy. 

And from the breach of this original ligeance arifeth the 
crime of treafon, tho the perfon committing it never promi- 
fed or fwore faith or alhgeance to his prince : for as the 
king by the very defcent of the crown is fully invefted with 
the right of fovereignty before his coronation, (which is only 
a magnificent folemnity attending that, which is before fet- 
tled in the prince by the defcent of the crown,) fo the fub- 
je6l is bound to his king by an intrinfic alhgeance before the 
fuperindu(£lion of thofe exprefs bonds of oath, homage, and 
fealty, which were inftituted for the better fecuring thereof 

R And 

(,d) It was not done m this cafe, but only it is faiJ by the counfc!, that it may 
be done. 



6l Hifloria Placitorum Coron 



vt/ • 



And this alllgeance is either natural from all that are iiib- 
je6ls born within the king's alllgeance ; or local, which obli- 
seth all, that are rcfident within the kind's dominions, and 
partake of the benefit of the king's protectionj altho ftrangers 
born. 

The breach of this primitive or virtual alllgeance is that, 
which is called high treafon ; what Ihall be faid a breach of 
this alllgeance, fo as to make a perfon guilty of treafon, fhall 
be lliewn hereafter. 

The exprefs or expllcite alllgeance conlifts in certain pro- 
mlfes, oaths, or profeilions attefting and wltnefling that alll- 
geance, and inftltuted for the farther lecurity thereof; and 
they are of two kinds ; firft, thofe, which were antiently in- 
ftltuted by the Common law, namely the oath of fidelity 
and alllgeance, and the profellion of llge homage ; and fucb, 
as are inftltuted by aft of parliament, namely the oath of fu- 
premacy inftltuted by the ftatute of i Eli^. (e), and the oath 
of obedience inftltuted by the ftatute of 3 Jacobi (/). Some- 
thing I Ihall iay of all thefe. 

The oath of fidelity or fealty is of two kinds : i . That 
which is due by tenure, whether of the king, or of mefne 
lords, which is ratione feodi vel -vajfalagii, and hath a Jlpecial 
relation to the lands fo held, and is fet down by Littleton^ 
§. 1 9. " Hear ye, my lord, I fliall be faithful and loyal 
" and faith to you fliall bear for the tenements, which I 
" claim to hold of you, and I Ihall lawfully do to you the 
" cuftoms and fervlces, which I ought to do at the terms 
" affigned. So help me God.'' 

Touching this feudal fealty, or fealty by reafon of tenure, 
I have not much to do in this place. The other kind of 
fealty is that oath, which is called fidelitas ligea, or al/igeance, 
and performed only to a fovereign prince ; and therefore re- 
gularly ought to be performed by all men above the age of 
twelve years, whether they hold any lands, or not. I'he te- 
I nor 

(e) caf.\. new ones appointed in tlieir room j fee 

(/; cc.p. 4. {vide 7 Jac. I. cap. 2 £f? iJ. 1 W.^M. Scjf. z. cap. 2. §. 5. and 3 W. 

15 Car. II. St. 2. cap'i. 1 5 ^14 Car. II. £5? M. cap. 2. 1 3 W. 3. cap. 6. i Amitc, 

cap. 5 £^ 4. 25 Car. II. cap. 2. 30 Car. II. cap. 22. 4 yJ/niee, cap. 8. 6 y^«;/<f, cap, 

St.i.cap.i.'] But thefc oaths arc abrogated 7, 14, 23. i Geo. I. c.ip. 13, SS'i". 
by iW.i^ M. ScJ): I. cap. i ^ 8.' and 



Hijloria Placitorum Cor on i^. 63 



nor of this oath according to Fleta, Lib. III. cap. 1 6. (g) runs 
thus : " Hoc auditis, circumftantes, quod fidenj regi portabo 
" de vita, & membris, & terreno honore, & arma contra 
" ipfum non portabo : iic me Deus, &c." 

According to' Britton, who wrote about $ E. i. cap. 1 9. 
(which is alio mentiond in Cahins cate, 7 Co. Rep. 6.) the 
common form of the oath of alhgeance taken in leets runs 
thus : " Ceo oyes vous N. bailife, que jeo A. de ceo jour en 
avaunt ferray feal, & leal a noftre ieigniour E. roy d'Angle- 
terre, & a fes heires, & foy & Isalte lui porteray de vie, & 
de membre, & de terrlen honour, & que jeo lour m.al, ne 
" lour damage ne faveray, ne orray, que jeo ne le defendray 
" a mon poyer : fi moy eyde Dieu & les ieyntz." This is 
the form of the antient oath of alligeance, or fidelity to the 
kinc, and as it is ufed at this day ; and he, that is minded 
to iee the antiquity of it, may read thereof 7 Co. Rep. 6. Cat' 
vins cafe, Spelmans Glojf. Titulo Fidelitas, which carry it up 
as high as king Arthur ; more particularly it was eftabliilied 
by the laws of the ConfeiTor (/;), and by the laws of king Wil- 
liam I. quod vide in Spicilegiis Seldeni ad Edmerum lege 52.(z) 
" Statuimus, ut omnes liberi homines foedere & facramento 
" affirment, quod intra & extra univerfum rcgnum Angliic 
" WiUielmo regi domino fuo fideles elle volunt, terras & ho- 
" nores illius omni fidelitate ubique fervare cum eo & contra 
" inimicos & alienigenas defendere." {k) 

And herein the prudence of the Common law is obferva- 
ble; the antient oath of alligeance, i. was lliort, and plain, 
not intangled with long and intricate claufes or declarations, 
but the fenfe of it' is obvious to the moil: common under- 
ttanding, and yet, 2. it is comprehenfive of the whole duty 
of the fubje<9: to his prince, and therefore hath obtaind for 
above fix hundred years in this kingdom -, and if any diffi- 
culties iliould occur in the fenfe or extent thereof, length of 

time 

C^) feSi. 22. kinji /Jrthir is omitteJ. 

(b) I. 35. but thefe laws are evidently {i)yuie Leg. Aiiglo-Snx. EdiLlFilkiniy 

fpurious, and feem to be the compofition f. Z28. Edi:. Lainhard, p. i-jo. 

of fome lawyer after the reign of iTil- (.k) Vide j^J/ifis Hearici regis jaEfas 

Ham II. Fide Htckcfii IJiJJcrt. Epift. apudQarendoniS reno-jatas apud Nortb- 

/. 95. and even In the bell ^l/^". copies c.mpton. Hoveden, p. 314. Edit. Sa- 

of thefe kws the legendary account of "Jii. 



64 Hijloria Placitorum Corona, 

time and long experience and practice hath fufEciently ex- 
pounded it. 

I fhall fiibjoin fome obfen^ables concerning this Oath, which 
indeed explain that implied and virtual alligeance,' whereof 
before. 

I . By whom this oath is to be taken : It is to be taken by 
all perfons above the age of twelve years, whether denizens 
or aliens, 2 Co. Infiit. p.m. except women, earls, prelates, ba- 
rons, and men of religion according to Britton, cap. i 2. which 
exception is not to be abfolutely and imiverfally iinderftood ; 
for all perfons above the age of twelve years are bound to 
take this oath of alllgeance, except women, as lliall be iliewn, 
but not in the fame manner or place, as others; but becaufe 
regularly this oath was to be taken in the leet, or at leaft m 
the llierifF's turn, which is in nature of a leet, where earls, 
barons, prelates, and men of religion were not bound to do 
their fuit, therefore by the ftatute of Marlbr. cap. i o. is this 
exception added : but yet at other times and in other places 
men of religion and noblemen were to take it, as fhall be 
iliewn. 

It differs from the oath of fealty perfbrmd to the king by 
tenure, for that includes fomewhat more, and fomewhat lefs ; 
and according to Britton^ cap. 68. (/) runs thus vdien per- 
formd to the king : " Ceo ayes voits bone gents qe jeo J. S. foy a 
" nofire jeignior le roy Edward porter ai de ceo jour en aiiaunt 
" de -vie i^ de membre, de cors ^ de chateux, <y de terrene ho- 
" nor, <y les fervices qe a lui appendent de fees i^ de tenements, 
" que jeo tcigne de lui, leaument les ferray as termes dues a mon 
" poer : fi moy ayde Dieu iff les Seynt^^ ^<:." 

Now, befides this oath of fealty or alllgeance to the king, 
there were antiently certain oaths admlnillred to perfons of 
a different age ; but thefe have been long diiufed, as namely 
that, which Britton mentions cap. i 2. -vi^. that all above the 
age of fourteen years (m) lliould fwear to be true and faithful 
to the king, and that they lliould not be felons nor aiTenters 
to felons, excepting men of religion, Women, clerks^ knights, 
I and 

(l) 5. 4.79. years. See i Cc. Inflit. 147. vide ftipra 

(«} This probably fiaouUl be twelve m 7zot!S, p. z^. 



Hifloria Placitorum Corona. 6 



> 



and their eldeil: fons (h) ; and of tlie like nature was that 
oath appointed by king Hemy III. to be taken by all men a- 
bove fifteen years, coniifting of divers particulars in order to 
the prefer vat ion of the peace, and nientiond at lar^e bv 
Braffton, Lib. III. TraEi. 2. cap. i. de Corona', both v/hich it 
feems were temporary provilions for prefervation of the peace, 
and therefore adminiilred to perfons above fourteen and tif^ 
teen years, and dift^rd from this lettled oath of aiiigeance 
above mentioned, 

2. What kind of path of fidelity this Is: As there is ho- 
magmm ligeum, and homagium fimpleXy lo there is fideUtas li'. 
gea and fidelitds fimplex ; this, that is performd to the king, 
is fdelitas ligea, and differs from the later, i . In that this is 
performd to a king, the other to a niefne lord. 2. This is 
performd without relation to any tenure of lands. 3. lliis 
is without exception of the fidelity to any perfon, that is al-* 
ways faha fide ^ ligeantia domini re^isi 

Yet there feems to be a double kind of lige fealty : as 
where there is a prince, that is fubordinate to another, and 
yet hath jurd fummi imperii over his fubjefls, fuch was the 
king of Scots, whilft in fome times of Edward I. and Ed- 
ward III. he was in f ubjeilion to the crown of England ; 
fuch was the prince of Wales before the conqueft thereof by 
Edward I. and the full union of it to the crown of England ; 
and thus it was in many inveflitutes made formerly by the 
kings of England : for inftance anno 35 H. 3 . when that king 
gave to his fon Edward the principality of Gajcoigne in France, 
fo that the gjreat men of that country fecerimt ei homagium 
^ fidelitatis jur amentum ; yet Matthew Paris (0) tells us, that 
dominus rex tamen fibi retinuit principale dominiitm, fcilicet lige- 
antiam. 

The like was done by £. 3. when Rot. Vafcon. 3^ £. 3. 
w. 18. the king had given to the black Prince the principality 

S of 

(n) This exception feems not to relate " Icaux, & que ils ne ferrount felons, ne 

to the oath, but to the being in a decennci " a felons aflentaunts, & volons, que 

or tithing. The whole pafTigc runs thus: " toutz foient en dizeyne, & plevys par 

*' Volons nous, que tres tous ceux tie " dcfcyners, fiuve gentz de relif;ion, clers 

" xiiii ans de fouthc nous faccr.r le fere- " & c hi valcrsSc lours fitz eynes, & fomes,'* 



menr, <^z ils nous fcrrount fealx & ('*;/• S45- 



66 Hijloria Placitorum Corona. 

of Aqnitam with a regal jurifdiftion, vi^, merum ilf mixttim 
imperhm, fo that in relation to the fnbjeils of Aqnitam he 
was in nature of a fovereign ; yet the king not only referved 
homagium ligeum to be performd to him by the prince, btit 
aU'o referved his own fovereignty, r/^. Dominio direBo isf fu- 
perioritate nobis femper fpeciditer refervdtis : by reafon whereof 
the king did not only fubiiitiite his delegates or judges dc la 
fovereignty et de refort to receive appeals from the prince, as 
appears by Mi: Seldens Tit. Honoris, part. 2. cap. 7^. §.4. but 
was intitled to a fuperior alligeance of all the fubje£ls of Aqui' 
tain : fo that here were two alligeances ; one due to the 
prince, which was qualified and reftrained, faha fide regis j 
and the other abfolute, which was due to the king as fupreme. 

Again, when in the year 1 170. Hen. 2. by confent of par- 
liament (/>), as it feems, (for otherwife it could not be done) 
made his eldeft fon king of England ; fo that there v\^3s rex 
pater, and rex filiiis, yet he reierved to himlclf the fupreme 
alligeance of all his fubjefts : " Et in craftino coronationis il- 
" lius rex pater fecit Willielmum regem Scotorum, & Davidem 
" iVatem (uum, & comites, & barones regni devenire homi- 
" nes novi regis, & jurare ei fidelitatem contra omnes homi- 
" nes, falva fidelitate fua ; " Qiiod vide apud Hoveden fub 
eodem anno {q\ and the inftrument itfelf at large apud Bromp- 
ton, p. lie 4. (r): " Hjec eft conventio & finis, qux WiUiel- 
" mus rex Scotias fecit cum domino fuo Henrico rege Anglix filio 
" Matildis imperatricis, viz. quod diiQiUr^ Willielmus rex Scotis; 
" devenit homo ligeus domini regis Anglia; contra omnem ho- 
" minem de Scotia, & de omnibus terris fuis aliis, & fideli- 
" totem ei fecit, ut llgeo domino fuo, licut alii homines fuo 
" principi facere lolent ; fimiliter fecit homagium Henrico filio 
" luo, & fidelitatem, falva fidelitate domini regis patris fui, 
8zc. Comites & barones de terra regis Scotix', de quibus 
dominus rex Anglijc homagium habere voluerit, facient ei 
" homagium contra omnem hominem, & fidelitatem, ut 
" ligeo domino fuo, iicut alii homines fui ei facere folent, & 
I " Henrico 

(p) Hovcdcn fiih anno 1170. 'Bromp- (r) Et In lilro rulro fcaccaru, fcl. 
toil, P. 1061. CLX VI. ^ RjMer's Feeders, Vol. I. /. 35. 

{,q) Et fub anno 1175. ex raegno rctiilo jjcucs Caincrar\ 



u 
ii. 



Hifloria Placitorum Coronce. 6j 

*' Henrico regi fillo fuo & iia:redibiis fuis, ft^lva fidelitate do- 
" mini xegis patris ful." 

Here was firfl the fupreme king, namely 7-cx pater, who 
did not oiift himfelf of his regality, as lome have miftaken, 
but had the lovereignty ftili, for he reierved his h'geance from 
the new king, and from all his fubjefls j yea, and in farther 
teftimony thereof the rex films in the year 1 175. did his fa- 
ther lige homage, and Iwore alligeance contra omncs homines, 
as appears by Hoveden. Secondly, Here is a fubordinate king, 
rex fiiius, who, tho in relation to his father he was a fubje^l, 
yet in relation to his fubje6ls, and particularly to the king of 
Scots, was a fovereign. Thirdly, Here is yet another fubor- 
dinate king, William the king of Scots, wlio was a fovereign 
in relation to his fubjefts ; and altho there was an alligeance 
or fidelit as lige a due by the fubje£l:s of Scotland to their king 
William, yet it was jaha fidelit ate to the kings of England, 
father, and fon ; and tho there was a lige fealty due to rex 
fiiius, yet it was falva fide regis patris ; but the fidelity or al- 
ligeance to the rex pater was purely fidelitas ligea, for it had 
no exception. 

3. I'he third obfervable upon this oath of alligeance is, 
that it is not only applicable to the politic capacity of the king, 
but to the perfon of tlie king, as well as to his office, or ca- 
pacity ; and for the mifapplication of the alligeance to the 
regal capacity or crown, excluln^e of the perfon of the king, 
among other things the Spencers were banilhed. Fide Judicium 
inde in Veteri Magna charta ^ 7 Rep. i i . Cahins cafe, for the 
oath is to be applied to the perfon of the king, as well as his 
crown. 

4. That in all oaths of fealty, as likewife in the profeifion 
of homage to any inferior or fubordinate lord or prince, it 
mull: be falva fide ^ ligeantia domini regis ; and to omit this 
faving is puniiliable in luch lord ; fee for this the notable re-> 
cord of 5 £. i. againft the bifhop oi' Exeter. Co. Litt. §.85. (y), 
and it is no more than is ufed in other kingdoms. Vide Spelm, 
in titulo Fidelitas. The emperor Frederic Barbarojfa in the 
year 1 1 5 2. made a law, that within his empire in omni fa- 

cramento 
(f) f- c^. a. h 



6S Hijtoria Placitomm Corona. 



cramento fidelitatis imperator nominatim excipiatur, which ob- 
taind prelently the like obfervation in all other countries, and 
accordingly is the Cuflumer de Normandy j cap. 29. i^Glojfa 2 da. 
Ibidem. 

5. That, tho there may be due from the fame perfon y/^i'or- 
dinate alligeances, which, tlio they are not without an exception 
of the fidelity due to the fuperior prince, yet are in their kind 
facramenta ligea fidelitatis, or fubordinate alligeances, yet there 
cannot, or at leail lliould not be two or more co-ordinate ab- 
folute ligeances by one perfon to feveral independent or abfo-^ 
lute princes ; for that lawful prince, that hath the prior obli- 
gation of alligeance from his ilibjeft, cannot lofe that intereft 
without his own confent by his fubjeft's refigning himfelf 
to the fubje£lion of another ; and hence it is, that the na- 
tural-born lubje£l: of one prince cannot by fwearing allige- 
ance to another prince put off or difcharge him from that 
natural alligeance ; for this natural alligeance was intrinfic 
and primitive, and antecedent to the other, and cannot be 
devefted without the concurrent a£l of that prince to whom 
it was firfl: due : indeed the fubje£l; of a prince, to whom he 
owes alligeance, may entangle himfelf by his abfolute fubjeft- 
ing himfelf to another prince, which may bring him into 
great ftraits ; but he cannot by fuch a fubjeftion deveft the 
right of fubjeftion and alligeance, that he firlt owd to his 
lawful prince, (t) 

It appears by BraSion, Lib. V. cap. 2 4. («), that there were 
very many, that had been antiently ad fidem regis Anglic ^ 
Franci^ey el pecially before the lofs o{ Normandy-j fuch were 
the comes marejcallus that ufually lived in England, and M. de 
Feynes manens in Francia, who were ad fidem utriufque regis, but 
they ever orderd their homages and fealties fo, that they fwore 
or profeiTed ligeance or lige homage only to one ; and the ho- 
mage they performd to the other was not purely lige homage, 
but rather feudal, as fliall be iliewn more hereafter : and 
therefore ^^^hen war happend between the two crowns, rema- 
in neat 

(t) The cafe here put by our author drawing alligc?.nce from a prince, who 

5- CTidently meant of a private fubjedt's has abdicated the throne, 

fwearing alh'gcance to a forein prince, ^u)l^ra6lat ^.^e Exce^tioviltis. 
and has no relation to a national with- 



Hijloria Placitorum Coronae, 6$ 



u 
u 



neat perfonaliter quilibet eorum cum eo^ ciii fecerdt Ugedntiam^ 
iff faciat jervitium debitum ei, cum quo non fteterat in perfona:, 
namely the lervlce due from the feud or fee he holds : but 
this did not ahvays fatisfy the prince, cum quo non fteterat in 
perfona, but their poffeffions were ufually ieized, and rarely or 
not without difficulty reftored without a capitulation to that 
purpofe betw^een the two crowns. Fide ClauJ. i 5 H. 5 . m. ii. 
pro Henrico de la Vagor, Clauf. 20 H. 3. m. i, pro Simone Mont- 
ford, and Placita Pari. 1 8 £. i . (x), the petition of the earl of 
Evipe in France for the caftles of Hafling and Tikehull is an- 
fwered, " ^andocunque placuerit domino regi Franciai terras 
ijf tenementa hominibus iftius regni refiituere, qu^ fua fue- 
runt, in poteflate ipfius domini regis, quod ipje dominus rex 
Anglia; de caftris & terris pr<cdi6iis pr^diBo comiti reddendis 
j'aciet, quod de confilio fuo viderit ejje faciendurn." 
But fometimes it fell out, that the inconlideratenefs of 
perfons carried them Upon prefumptions of fome advantages 
to make a ligeance to both princes 5 and then the fucceffes 
of either fide rendred them within the penalty of the breach 
of alligeance to the adverle party. 

Peter Brian had the earldom of Richmond here in England, 
and held it of the crown o{ England, and the duchy oiBri- 
tany in France, which was held of the crown of France, (tho 
Brompton tels us, that by an agreement bettveen Richard I. and 
the king of France fub anno i 1 9 1 . (y), the feigniory thereof 
was beftowed upon the king of England) he was an homager 
of the crown of France, and upon lome agreement between 
him and the king of England touching a War with France^ 
he came into England, and, as it feems, fvv^ore fealty to the 
crown of England; but afterwards he fell in again with the 
king of France, and betrayed the army of the king of Eng- 
land, and per internuncios reddidit Anglix regi homagium ; but 
he loft himfelf with both crowns : the king of France dilpo- 
fed of the duchy of Britany to his fon, and the king of Eng^' 
land gave the earldom of Richmond to Peter de Sabaudia ; tho' 
upon an exchange he afterwards took it back, and reftored it 
to a ion of the former earl. M. Paris fub anno 1254.^. 4o5o 

T and 

(*) Rylefs 'Pine. Tarl. f. z9i ^y) Vide 'BrmJ>ton, f. ii<)6; 



70 Hifloria Placttorum Corona, 

and Clauj. ii^ H. i- m. i-j. dorf. where in a letter by the king 
to the pope the whole llory is related. 

After this John de Breme other\vife Montford defcended 
from the above-mentiond Peter, fallins; in with king Ed' 
Tj^ard III. after his alTumption of the title of France, was re- 
Ifored to the duchy of Britany and earldom of Richmond', 
and Clauj. 1 9 JS. 3. p.i. m. 14. dorf. did his lige homage 
to king Edward III. as king of France m theie words : 
*' Mon feigneur, jeo vous recognoiffe droiturell roy de 
" France, et a vous, come a mon ieignior liege et droiturell 
" roy de France, face mon homage pur le dit dutchy de Bre- 
" taigne, quel jeo claime tener de vous, mon feignior, et de- 
" veigne voffre home lige de vie, et de membre, et de ter- 
" rene honor, a vivre et morir countre touts gents." His 
" fon John de Montford falling back to the king of France loft 
the earldom of Richmond by judgment in parliament -] R, 2. 
but enterd de recordo. Rot. Pari. 14 i^. 2. n. 14. 

Thefe difficulties befel thofe, that were ad fidem utriiifque 
regis ', they were fure to be lofers on one lide, and fome- 
times on both Udes. 

And thus far touching the oath of alligeance or fealty. 

II. The fecond exprefs obligation of the fubje6l to his 
prince is that of homage. 

This, tho it be no oath, but a very folemn profeffion of 
duty, yet it hath always fealty performd with it, and after 
it ; for homage draws with it fealty, which in cafe of fimple 
homage done to a fubje6l is with the fame exceptions, as the 
homage is; but in cafe of homagium ligeum it hath attending 
upon the performance thereof fidelitas ligea, or alligeance. 

The kinds of homage are three : i . Simple, as that which 
is performd to a mere lubje£l by virtue of his tenure. 2. Ho- 
magium ligeum. 3. Homagium mixtum. 

1. The limple homage, which is performd barely by rea- 
fon of tenure, is that, which Littleton defcribes both in the 
words and ceremonies. Lib. II. cap. i. (^), wherein always 
there is an exception of the faith due to the king. 

5 2. Ho- 

(») SeEi. 85, 



Hifioria Placitorum Coronas. 71 

2. Homagiim ligeum which is thus : " Jeo deveigne voftre 
" home de ceo jour en avant de vy et membre, et de terrene 
" honor, et a voiis ierra foyal et loyal, et foy a vous portera 
" contre touts gents, qe viure jx^ient, ou morier" ; this is 
the form, that Fleta gives Lib. 111. ca. 1 6. (a) 

The ceremony is the lame, when done to the king;, as 
when it is perfbrmd to a mefne lord, only Rot. Pari. iZ H. 6. 
«. 58. the ceremony of killing the king was difpenfed with 
by reafon of the danger of contagion in time of plague. 

And touching this homage thele things are oblervable : 

1. It difters from the oath of alligeance in that, this is 
only by a profelTion ; but alligeance is by an oath, tho the 
oath of alligeance alfo accompany it. 

2. It differs in this, that, whereas all men above the age 
of twelve years are to take the oath of alligeance, whether 
they hold land, or not ; yet lige homage is not to be per- 
formd but by three lorts of perlons : i . Such as hold of the 
king by homage, which, tho it be performd in relpefl of te- 
nure, yet it is homagiim ligeum, becaufe performd to the fo- 
vereign, and without any exception of the homage due to in- 
ferior lords. 2. Such as are dukes, earls, or vilcounts, or ba- 
rons, tho they hold nothing of the king, yet at the corona- 
tion they perform a lige homage; the tenor whereof runs 
thus : " I become your liege man of life and limb, and of 
" earthly woriliip, and faith and truth I fhall bear unto you 
" to live and die againft all manner of folk : jo God me help.'' 
and then he toucheth the crown ^ and then toucheth the 
ground ; nota, it refers not to any lands. 3 . By prelates, or 
billiops ; and this not only at the coronation of the king, but 
after their eleftion, and before the reifitution of their tempo- 
ralities, nde Statute 25 i^. 8. cap. 20. 

Antiently the clergymen quarreld at the performance of 
homage to the prince ; but by the conftitutions of Clarendon 
let down by Matthew Paris, p. i o i . they were bound to per- 
form it, and it hath been hitherto pra£lifed ; only to gratify 
them in fome thing antiently it was indulged in this manner, 
vi^. " Facict ek6bus homagium ilf fide lit at em regi, ficut ligeo 

" domino 

{a) Se&. XI. 



72, Hijioria Placitorum Corona. 

'' domino fuo, de vita, iD" memh'is, ^ de honore teneno, falvo. 
" ordine juoy priufquam conjecretur' ; and, tho I do not find 
this fnlvo ordine inferted in after-times, yet there hath been a 
temperament added to that homage perfbrmd by clergymen, 
which, it feems, fatisfied their Icrupie, their homage running 
thus : " / flfo you homage^ and faith, and truth bear unto you, 
*' our fovereign lord, and to your heirs kings of England, and I 
" fljall do, and truly acknowledge the fervice of the lands, which 
" / claim to hold of you in the right of the church, as God me help'* 

And this is fealty, as well as homage, for it is accompa- 
nied with an oath, tho it hath the folemnity of genuflexion, 
and killing the king's cheek. 

3. The agreements and differences between that homage, 
that is fimpiy feudal, or by reafon of tenure only, and this 
homage, that is ho/nagium ligeum, are thele : 1 . Becaufe, tho 
homage is not to be done by any, but thofe, that hold by 
that fervice, or by the nobility, or clergy, as before ; yet 
when done to the king, it becomes homagium ligeum in refpeiS 
of the perfon to whom it is performd. 2. If it be homage 
done to the king, it is homagium ligeum, and hath no excep- 
tion of homage due to others. 3. But principally the diffe- 
rence is in the effe6l of it, which is excellently delcribed by 
Terrien in his Comment upon the Cufiumer of Normandy, 
Lib. III. cap. I. Feudal homage, that is fimpiy fuch, binds 
only ratione feodi ; therefore if the homager alien, or deliver 
to his lord his £&^, or fee, he is difcharged of the obligation ; 
but lige homage, tho it may be performd by reafon of the 
fee in its kind or fpecies, yet it principally binds the per- 
fon ; and tho the fief it felf be aliened, or transferd to an- 
other, yet the obligation of lige homage continues. 

3 . I'here are certain homages, that are mixt, and partly 
lige, and partly not ; and they are of two kinds : i . \Vhen 
the homage is performd to a prince, that is fovereign in rela- 
tion to his fubjeds, yet owes a fubjeftlon to fome other 
prince ; this was the cafe of the prince of Wales, and the king 
of Scots before mentioned, the homage, that they performd 
to the king of England, was fimpiy lige homage, as w^e may 
read before and particubrly in IValJingham^s Tpodigma Nen^Jiria 

5 M 



ii 
il 



Hifloria Placitori'im Corona. 73 

^uh anno 1291. {h\ where the tenor of the homage of John 
de Baliol king; of Scots is entred in h<ec verba : " Domine Ed^ 
varde rex Anglise, fuperior domine regni Scotias, ego Johannes 
Baliol rex Scotisc recognojco me hominem veflrum ligeum de 
toto regno Scoti^e, ^ omnibus pertinentiis, iSJ' hiis, qiu ad hoc 
*' fpeSlant ; quod regnum meum teneo ^ de jure dchco ^ cla* 
" mito tenere ktreditarie de vobis &" h^redibus veflris re^ibus 
" An8;li2c, de vita ilf de membris, iff de terreno honore contra 
*' omnes homines.^ qui poffunt vivere iff mori^ 

I mention this homage of the king of Scots^ not to revive 
the antient controverfy touching the fubordination of that 
kingdom to this, for that difference hath been long fettled 
and at peace ; but only to apply my inftances ol the various 
forts of homages performd by fovereign princes. 

Rut the homage, that was periormd by their fubje(3:s to 
them, was partly lige homage, and partly nor ; it was ligs 
homage as to between the king of Scots and them, and as to 
all perlons in the world, except the king of England ; for the 
king of Scots and prince of Wales had the rights of fjve- 
reignty jura imperii as in relation to their fubjedls and all o- 
therS) but the king of England. 

But in relation to the king of England^ the homage per- 
formd to the prince of Wales, or king of Scots was not lige 
homage ; for there was an exception either expreffed or im- 
plied at leaft falva fide domini regis Angli^e, as appears plainly 
above. 

2. Another inftance of a mixt homage is, when a fovereign 
prince hath a vafTalage, or poffeflion in another abfolute 
prince's dominion : this was the cafe of the king of England^ 
in relation to the lordlliips and feignory he had in France, 
as Aquitaine, Anjou, and Picardy, iffc. w^hich were all held of 
the crown of France : theie defcended to king Edward III. 
the kiuCT of France required lige homage from the king of 
England for thefe territories ; the king of England, as king of 
England, had nO dependence on France, and therefore for the 
more caution performd to the king of France for the dutchy 
of Aquiiaine and other his poffeilions in France a general hc- 

U mage 

ih) C5? IJ9»- /■ 477i 479. 480. 



74 Hifloria Placitorum Coronce. 



mage by thefe words, " 'Nom entromys in t homage de roy de 
*' France ^er ainji, come nous et nous predeceffors dues de Guyen 
" efloicnt jades enter ent en t homage des royes de France pur temps 
" efieant'^ ; and altho afterwards a fettled form of homage 
was prefcrlbed in this cafe (f), yet moft evident it is, that it 
v>'as not homaghm ligeum, but only a feudal homage relative to 
thofe territories of the crown of France^ but not at all with 
any relation to the perfon or crown of the king of England. 

For the king of England had a double capacity, one as an 
abfolute prince, that owed no fubje£lion to the crown of 
trance, nor to any other king, or ftate in the world ; in this 
capacity he neither did nor could do homage to the king of 
France ; he had another capacity, as duke of Aquitaine, and 
in that capacity he owed a feudal, but not perfonal fubjeflion 
to the crown o^ France ; and in this latter capacity only,* and 
as a different perfon from himlelf, as king ot England, he did ' 
the homage, which was in truth no I'ige homage, but a bare 
feudal homage, which I rather mention to reftify the millakes 
of thole, that call it a lige homage. 

But by the way I mull: oblerve, this feudal homage, as 
A\]k& o£ Aquitain, lafted not long, for in i/^E. 3. the king 
of England alTumed the title of king of France together with 
the arms of France by hereditary defcent, which ftyle his fuc- 
ceffors have ever fmce ufed. 

And indeed the name o^' lige homage from him, that was 
king of England, to the king of France, tho purely in the ca- 
pacity of duke of Aquitain, lounded fo ill, that ^^d^en a 
peace was in treaty between the king of France and Richard II. 
r^. Rot. Pari, i-j R. 2. n.i6. the entry is made, " Fait a re- 
" member qe le roy, feigneurs, chivakrs, et jufiices ajfenterent en cefl 
" parliament a le pees, purenfi qe noflre dit feigneur le roy ne 
" face homage lige, et fauant touts dits le liberty de la perfon 
" 7wflre feigneur le roy, et de fon royalme de Angleterre et de fes 
" liges du dit royalme\ and with power to refort to the title 
of the crown of France, in cafe of breach of league by the 
king of France: this is farther amplified by the Ipeech made 
openly by the fpeaker of the houle of commons. Ibid. «. 1 7. 
4 The 

Cc) P'"!de 'Pat. 5 E. ;. part. i. m. 17. 



Hiftoria Placitorum Cor once. 79 

The homage here meant was with relation to the duchy of 
Jquitain, which upon this treaty was to be cleliverd to the 
king of England. 

And thus much touching thefe two fecurities of the fub» 
jest's alh'geance to the king of England, wherein I have been 
the larger, becaufe many things occur in this bufinefs, that 
give fome light to antiquity, and do not fo commonly occur, 
and becaufe tlie great brand of high treafon is, that it is a 
violation or breach of that facred bond from the fubjeft to 
his king, com.monly called alligeance, for the fecurity where- 
of this oath of alligeance, and lige homage Were inftituted, 
and efteftually expounds the obligation, and duty of that al- 
ligeance, that is due from the fubje6l to the king. 

I iliall now only mention thofe two eminent oaths of fu- 
premacy, and obedience, tho there were belides them other 
temporary oaths relating to the crown, as that of 2 5 H, 8. 
cap. 11. 16 H. 8. cap. 2. 28 H. 8. cap. 7. 3 5 H. 8. cap. i. 

'I'he fupremacy of the crown of England in matters eccle- 
iiaftical is a moft unqueftionable right of the crov^'n of Eng- 
land, as might be fliewn by records of unqueftionable truth 
and authority, but this is not the bufinefs of this place ; yet 
neverthelefs the pope made great ufurpations and incroach- 
ments upon the right of the crown herein. 

King Henry VIII. in the twenty-fifth year of his reign ha- 
ving pared oft thole incroachments in a good meafure by the 
ftatute of 25 H. 8. capp. 19, 20, 21. in the twenty-fixth year 
of his reign the fupremacy in matters ecclefiaftical is rejoind 
and reftored to the crown by the ftatute of 26 H 8. cap. i. 

The papal incroachments upon the king's iovereignty in 
cauies and over perfons ecclefiaftical, yea even in matters ci- 
vil under that loc^fe pretenfe of /'« ordine ad fpiritualia, had ob- 
taind a great ftrength, and long continuance, notwitlift:anding 
the fecurity the crown had by the oaths of fealty and allige- 
ance ; fo that there was a neceflity to unrivet thofe ufurpa- 
tions by fubftituting by authority of parliament a recognition 
by oath of the king's fupremacy as well in caufes ecclefiafti- 
cal, as civiL 

And 



76 Hijtoria Placitonim Corona. 

And therefore after thofe revolutions, that happend in die 
life, and on the death of Henry VIII. Edward VI. and queen 
Maryy queen Elizabeth coming to the crown, the oath of fu- 
premacy was enabled by the ftatute of i EU^i. cap. i . for the 
better fecuring of the fupreme authority of the crown of Eng- 
land as well in matters eccleiiaftical, as temporal ; which I 
Jhall not here repeat, but referv^e the fame, and \\rhat is pro- 
per to be faid touching it, to a particular chapter here- 
after, {d) 

Afterwards the dangerous pra£lices of popifh reciifants 
gave the occaiions of ena£ling of the oath of obedience by 
the ftatute of 3 Jac. cap. 4. which I Ihall likewife refer to its 
proper place. 

And thus far touching alligeance, and the fecurities of the 
fame by the oath of alligeance, and the profeffion of lige 
homage. 



CHAP. XI. 

Concerning treafons at the Common law, 
and their uncertainty. 

HAving fhewn in the former chapter the kinds and 
bonds of fidelity and alligeance from the iubje61: to the 
king, I come to conilder of thofe crimes, that in a fpecial 
manner and fignaJly violate that alligeancej namely high 
treafon. 

At Common law the crime of high treafon had fome kinds 
©f limits and bounds to it. 

4 In 

(^4) Vide }oftta cap.!'). 



Hijforia Placitorum Corona. 77 

In the time cf Henry II. Glanv'il^ \\'ho then wrote, Lib. IV. 
cap. I isf "]. tells us of four Icinds of crimina lef^ mdjeftatis, 
vi^. de morte regis, de jcditicne regni, ds [editiorie exerchiis re- 
gis, and the counteifsicing of the greiit fe:il ; for as to the 
counterfeiting of money, th.at came under the title cf Crimea 
falji, and the punillimsnt thereof antientlj was various j but 
of that particular hereafter. 

BraEton, that wrote in the time of Henry III. Lib. III. 
cap. 3. " Siquis auju temerario macbinatus jit in mortem domini 
" regis ; zel aliquid egerit, rel agi procuravcrit cid jeditionem ( a) 
" djmini regis, vel exercitiis fui ; -vel procurnntibits mixilium iD" 
^^ confiliiim pr^buerit, vel confenfum, licet id, quod in volimtate 
" habuerit, non perduxerit ad e^'eCiimi' ; to which he adds 
counterfeiting of the feal and money ; wliich, tho they come 
under crimen falji, yet are reckond by him among the crimina 
hjs majejiatis : tho in thefe old authors trealon is fometimes 
expreffed by the name cifedition, yet that word is too gene- 
ral and comprehenfive of other oltenfes not capital, as well i\s 
of treafon ; and therefore a charge of fedition againff the 
king, or of exciting lediticn, or cf fpeaking, writing, or do- 
ing any thing jeditioujly, doth not amount to a charge of 
treafon ; and therefore it was, that in the cafe of Selden and 
others, Trin. 5 Car. B. R. (b), \\dien upon an habeas corpus the 
parties were returned committed by the privy council by the kings 



^ command 



j\. 



(.a) In the cafe of Mr. ..9t'/^<?;? this is in lc,?al proceeJings (as will appear 

fuppofcd to be the true reading, but in from feveral records hereafter quoted) 

moiirof theylW^. of jS'r^c^o;; the word in until the terms proditio i$ proAitorji 

this place is fedn^ionem^ altho in other prevaild inits room, which laft word mufl 

place's of the fame chapter the word /t'- now be neceflarily ufed in every indid- 

diuo is ufed: Flcta makes frequent ufj ment of treafon. 5 Co. Ii:fl. 4, la, 15. 

of the word Scdu^io, Lih.l. cap. 20. {b) Mich. '^ Car. I. Fide R'/p-zivrrb's 

§. I. cap.zi. $1). I, z, %. (the lail of which Hiftoricd ColleflioKS, Vol. I. p. 6-9. Ap- 

places fecms to be a direfl tranfcript from pciidi.v p. i S, i^c. Scldcni Ope*:t, Vol. VI. 

^raElon) tho the word feditio is once /. 1958. Tiie court was content, thnt 

ufcd by him, dicfo c^pite, ?. 8. and they fhou!<l be bailed, but faid, that 

!BracIo72 afterwards in this fame chapter they ought to find fureties alfo for their 

ilyles a traitor Jedii£lor. good behaviour : they had their fureties 

HcKghcm cap. 2. and Glanvil, Lih. I. ready for the bail, but they were re- 

cap. 2. both of them place -jeditionem manded to the l^oiver, bccaufe they 

In the rank of trcafons, and fo it was would not find fureties for the qood be- 

eilecmed by the Civil law. ^ig. Lib. haviour. Selden was not bailed till Alr.y 

XLVIII. tit. ^. ad leg. yi/l. MajcJlatis, ic:?r. and not difcharged from bis bail 

/. I. //>. 19. 2/t' /fl?;;/.f, /. 3X. (5.2. Se- x\\\ ya?ii/d>y 167,4.. Vindicii:^ Mru-isCla!'//. 

Jitio continued to be the technical word Scldcni OUrc, Vol. IV. p. i^ij, He 



78 Hiftoria Placitorum Corona. 



command for flirring up /edition againfl the king, the prifoners 
were bailed in the king's court, becaiife it amounted not to 
to a charge of treafon, for fedition in a true legal lignifica- 
tlon doth not import treafon. 

Fleta, who wrote in the time of Edward I. agrees almoft 
verbatim with BraBon, vi^- Lib. I. cap. 20, 21. (c) 

Britton, who made his book in the time alfo ol king £^- 
n^ard I. reckons up treafons much in the fame manner, yet 
makes fome additions, cap. 8. de trefon ; " Grand trefon efl 
" a compajfer nojlre mort, ou diJJjeriter nous de noflre royalme, 
" 01* de faufer noflre feal, ou de countrefaire noflre monoye, ou 
" de le retoundre." 

And cap. 11. de appeles : " Sont aflcunes felonies, que touchent 
" noflre fuyt, et potent eflre fuys pur nous., ficome de vers nos 
" mortels enemies, de noflre feal, de noflre corone, et de noflre 
*' monoye faufe." 

Again ; " En primes, ccfl a dire, de appels de felonies, que 
" poient eflre fait^ par nous, et nemye pour nous, ficome de tre- 
fon, et de compaffcmcnt purveu vers noflre perjone pour mm 
mettre a mort, ou noflre compaync, ou noflre pere, ou noflre 
mere, ou nos enfaunt^, ou nous difljeriter de noftre royalme, 
ou de trahir noflre hjfle, tout ne Joit tiel compajfcment mys 
en effe^.' 

And in the later end of the fame chapter, " Et de 
" faufyn de noflre feal, iff de noflre monoyc, purra lenfuer ap' 
" pels pour nous en mejme la manere, et aufi del purgifer de no- 
*' flre compayne, ou de nos files, ou des nor ices de nos enfaunt^: 
" (d) En queux cafes foit le jugement, de eflre treyne, et pen- 

" du, 

(c) He (Iocs not rank the counterfeit- ncjfe Irgirime, a-vnnt ceo que elk foit wa- 

ing of the feal or of the coin aniona, the r>', en la garde le rcy, ou la mirke le 

crimina Icefcs juajeflaris , (as Sradon a9?t le heirc le roy. Thefe are the 

AoGs)hviia.mor)gi):ic crhi/inafalJJ, Lib. \. only offenfes, which that trcatife calls 

cap. la. Crimes dc Alajefty. Counterfeiting of the 

(^d) According to the Mirror of ^'ffli- king's feal or money is ranked under 

ces, p. ar, ^^. high treafon is commit- Taiifonnery, p. 19. And every fpecies of 

ted, I. '■Per ceiix, que Occident Ic roy, ou petit treafon is flyled ^Treafon, p. 50. as it 

corapajfent de fa ire. z. Ver ccux, que is alfo by Sri ton, cap. 8. 

luy difJyeritent del royalme, per [ceuxqtic'^ It is one of the articles againfl Roger 

trahiffent iin hofl, ou compajfent de le Mortimer, Rot. 'Pari. 4. F. 5. n. 2. 28 

faire. ■!,.'Per ceu.v avowterors, que fpar- £. ;. «. 8. that he compafTcd to deftroy 

gijfcnt le fcmrae Ic roy, le file k roy cig- les mtrriz Ic roy. If a private lord was 

a injured 



Hijtoria Placitorum Coronce. 79 

" du^ ilfc.'^ By thele various exprcllions of Briton it ap- 
pears, that the crime of liigli treaion was very uncertain ; 
fometimes ftyled under the name of felony, fometimes had 
the puniihment of petit treafon applied to the crime of high 
treafon, and fome crimes mentiond, as treafons, which \vere 
not fo taken by Bra5ion, or Fleta ; and indeed in the farther 
purfuit of this argument we Ihall find, that at common law 
there was a great latitude uled in raifmg of offenfes- into the 
crime and punilhment of treafon, by way of interpretation 
and arbitrary conftruftion, which brought in great inconve" 
nience and uncertainty. 

In the parliament of 3 3 £• i • now printed (e), \\diich is 
likewife entred P. 33 £. i. Rof. 21. North' t. coram rcge : '"'' Ni- 
" cholaus de Segrave \N^as impeached (f)de eo, quod mm dominus 
" rex nunc in ultima gnerra fua Scotix inter hofla isf inimicos 
" juos extitijfet, isf idem Nichohius de Segrave homo ligem te- 
" nens de ipfo domino rege per homagiuyn iff jidelitatem in eadem 
*' guerra in cxercitu ijf auxilio ipfius commorans effet ; idem- 
" Nicholaus de Segrave motii propria^ malitioje, iff abfqite caiifi 
" content ionem iff dijcordiam verjus Johannem de Crumbwell m 
" eodem exercitu fmditer in auxilmm- regis exiflentem rnovebaty^ 
laying great iniquities to his charge ; that Crumbivell offered to 
defend himfeif againil thele imputations, as the king's court 
iliould award : Et ad hoc fidem juam ei dedit ; et pofl ejujderit 
fidei dat ionem pr^di^us Nicholaus elongando Je iff Juos, iff ex- 
trahendo pr^diUum johannem iff juos ab exercitu iff auxilio ip- 
Jiiu domini regis, quantum in ipfo Nichol;;o fuit, eundem dominum 
regem inter inimicos juos periculo hofiium fuorum relinqucndo 
jprevit, iff pr.cdiSlum Johannem ad Je defendendum in curia re- 
gis Franci:^ adjornavit, iff certum diem ei dedit ; et Jic, quantum 
in eo fuit, jubmittens iff fubyciens dominium regis iff regni An- 
gliis fubjectioni domini regis Francicc ; and that in puriuance 
thereof contrary to the king's prohibition he took his journey 

towards 

iniured in this manner, it was antiently " chaffil're, on ma femme, on la norrke 

petit treafon : '■^ 'Traditores cuitem, qui " de mon bcirc, oit le aitnr^i^c.''' Mirrcr 

'■ dominum, dmiinamvcintcrj'cccrint, vcl de'J''fiicc,p.i,\.V"idc 'Briton^ cap. 22. (70.) 

" qui cam uxorihui dominorum fuvnrn?, yc) In Ryley s 'Placira 'Parlamcntana, 

" vel filiabitSt vel nutricibjn dsmijicrtira p. z66. 

" conciiluerii2t^\ ^c. Fleta, Lib. I. cap. (f) 'Per Nicholaum dc Jfiire'ii-ick, qui 

57. 5.4. " Oil difparagr ma file, rn ma ^eqvitnr pro domino rege. 



a 



So Hijloria Placltoriim Cor once, 

towards France ; and that he did this " nequiter i!f malitiofe 
in perfoncC domini regis fericuJum, curi<€ fiM contemptum, co- 
ron<€ ^ dignitatis jus regis Ufwnem ilf exhsredationem ma- 
nifeflam, iy contra ligeantiam, homagium, juramentum, i^ fi- 
delitatem, qui bus ipfe domino regi tenchatur" Segrave con- 
fefTed the oftenie. The lords in parliament are charged by 
the king upon their alligeance to give advice, what puniili- 
ment w?.s to be infli^led ; " 0//i omnes babito juper hoc dili' 
" genti traSiatu iff advifamcnto, confideratis i^ intelleciis omni- 
bus in diBo faSlo contentis isf per prsdiSliim Nicholaiim pleng 
iy expreffe cognitis, dicunt, quod crimen hujufmodi meretur 
pocnam amijjionis vits, iffc." but he was after pardoned. 
Which judgment ieems to import no lefs, than the crime 
of high treafon, tho the whole judgment be not declared at 
large but with an iffc. 

Accroaching of royal power was a uftial charge of hisjh 
treafon antiently, tho a very uncertain charge, that no man 
could well tell, what it was, nor what defenfe to make 
to it. 

The great charge againfl: the Spencers about the i £. 2* 
was, that they did accroach royal power, whereof feveral in- 
ftances are given, (g) 

The CTreat charge againft Roger Mortimer in the parliam.ent 
of 4 £. 3. next to that of the procurement of king Ed' 
rpard II.'s death, was accroaching of royal power, whereof fe- 
veral inftances are given ; but he had judgment by the lords 
in parliament to be drawn and hanged, upon that article on- 
ly, that concerned the death of king Edivard II. Vide infra 
cap. 14. 

Trin. ziE. 3. Rot. 2 3. rex coram rege. John Gerberge, Knt. 
indicted, " ^lod ipfe fimul cum aliis in campo vilU de Rovfton 
" in alta regia flrata\ rode armed with his Iword drawn in his 
hand modo guert'ino, and alTaulted and took William de Bote- 
lisford, and detained him, till he paid 90 /. ^c. and took 
away his horie, " ufurpando fibi infra regnum regis regiam po- 
" teflatem ipfo domino rege in partibus exteris cxifiente, contra 
*' ////■ ligeantiam, i^ regis iSf corons fu£ prsjudicium, ilf fedi- 
2 " tionem 

(g) Vide Knighton, /'. 2545, 2547. Edit. T'-j.yfdeti. 



Hijloria Placitorum Cor once. 8 1 

" tionem manifeflam^ : he prayed liis clergy, but was oufted 
of it, ^ua privilegium clericale in hujufmodi cafu feditionis Je- 
cundiim legem iff confuetudinem regni hatienus obtemas iD" ufitatas 
non efl allocandim (h) : but yet he relliling to plead was not 
convi£led, as in cale of treafon, but was put to penance ad 
poenitentiam ftiam ; two of his companions being convi£led by 
verdidl, had judgment, quod diflrahnntiir isf fujpendantur. 

This judgment it leems troubled the commons in parlia- 
ment, who thought, that the accroaching of royal power was 
fomewhat too general a charge of treafon before the ordinary 
courts of juftice, tho it had been uied in charges of treafon 
in parliament ; and therefore in the parliament following held 
Craflino Hilar ii 21 £. 3. «. 15. there is a petition in parlia- 
ment in theie words : Item prie le commen, qe come afcims dcs 
jujiices en place devant eux ore de novel ont adjudges pur treafon 
accrochment de royal poer, pry Ic dit commen^ que le point folt 
dejclare en ceo parlement, en quels cafe ils accrochent royal poer, 
per quel les feigneurs per dent lour profit de le forfeiture de lour 
tenents, et les arreynes benefice de feint cfglije. 

Ro\ En les cafe, ou tiel judgments font rendus, font les points 
des tieux treafons et accrochments declares per mefmes les judge- 
ments. 

In zz Jjf. j\g. (/■), It appears, that John at Hill was indict- 
ed, and attaint of high treafon for the death of Adam de WaU 
ton nuntii domini regis mijfi in mandatum ejus exequendum. 

And in the year before, w:^. 2 i £. 3 . 2 5 . it feems admit- 
ted, that an appeal of treafon lies for the killing one of ma- 
lice prepenfe, that was fent in aid of the king in his war3 
with certain men of arms. 

King Edward II. being depofed, and committed prifoner to 
Barclay caftle, under the cuilody of John Matravers and Tho' 
mas Gurney, w^as there by the procurement of Roger Mortimer 
barbarouiiy murderd ; for which Mortimer and Gurney were 
attainted of treafon by judgment of the lords in parliament. 
4 E. 3. n. I, $. (k) 

Y Matra- 

(h) For t'le fame reafon clergy was (k) Vide Rot. 'Pari. 2^ E. 5. n. 8, 

refufcd in T'horpe's cafe, 7". zi Ii. 3. when the judgment againft Mortimer 

Rot. z'y. Re.v. de quo vide pojiec, was reverfed. 

(0 5". Treafon 14. 



8z Hi ft or i a Placltonim Cor once. 



Matravers was fufpe6led to be guilty, but yet he pLwed 
another game, for tho he knew of the death of Edivard II. 
yet he Informed Edmund earl of Kem, half-brother to Ed- 
ward IL that he was living ; the earl therefore with many 
others raifed a force for his deliverance, but prevailed not, 
but was for that fa£l: attainted of treafon, anno 3 £. 3. which 
attainder was afterwards in the parliament 28 E. 3. reA^erfed, 
and the grand-child ol' the earl of Kent rcibred (/) : John Ma- 
travers, who it leems had animated the infurre^lion of the 
earl of Kent, tho he fled into Germany, yet by judgment of 
the lords in parliament 4 £. 3. «. 3. was attainted of treafon 
for the death of the earl of Kent : the words of the record 
are, " Tres-touts les peres, counts, et barons affembles a cefl par- 
" lement a Weftminfter Ji ont examine eflraitment, et fur ce 
font ajfentus et accordes, qe John Matravers fi ef} culpable de 
la mort Efmon count de Kent le uncle noflre feigneur le roy 
qe ore efl, come celui qe prlncipalment, trayteroufment et fauf- 
ment la mort le dit counte compajfa iffint, qe la ou le dit John 
" favoit la mort le roy Edward, ne pur quant le dit John par 
" enginous manner et par fes fauffes et mauveyfe fubt ikies Jifl le 
" dit counte intendre la rye le roy, le quel fauffe compaffcment 
" fufi caufe de la mort le dit counte et de tout le mal qe fenfuifl, 
par quoi les fus-dits peres de la tre et jugges du parlement a- 
juggent et agardent, qe le dit John foit treine, pendus, et de^ 
colle, come treitre, queu part, qil foit eflre troue. 
Upon this judgment Matravers brought a petition of re- 
verfal. Rot. Pari. 21 E. 3. n.6$. dorf but nothing was done 
upon it ; but Rot. Pari. 2^ E. ^. p. 1. w. 54, 5 5. he was refto- 
red by a6l of parliament. 

By thefe, and the like inftances, that might be given, it 
appears, how uncertain and arbitrary the crime of treafon 
was before the ftatute of 25 £. 3. whereby it came to pafs, 
that almoft every offenfe, that was, or feemd to be a breach 
of the faith and alligeance due to the king, was by con- 
ftruftion and confequence and interpretation raifed into the 
offenfe of high treafon. . And 

(I) That attainder was reverfed long muv/i his eldeft fon, and Margaret coun- 
before, viz. 4 E. 5. Vide Rot. 'Pari 4 E. tefs dowager o^ Ketit 5 and Edmund the 
3. «. II, I i. upon the petition oi Ed- fon was rcflored. 






iC 



Hijloria Placitorum Corona. 83 

And we need no greater inftance of this multiplication of 
conftruftive treafons, than the troublefonie reign of king Ri"- 
€hard II. which, tho it were after the limitation of treafons 
by the llatute of 2 5 £. 3 . yet things were fo carried by fac- 
tions and parties in this king's reign, that this ftatute was 
little obferved ; but as this, or the other party prevailed, fo 
the crimes of high treafon were in a manner arbitrarily im- 
pofed and adjudged to the difadvantage' of that party, that 
was intended to be fupprelTed ; fo that de fa6i;o that king's 
reign gives us as various inftances of thefe arbitrary determi- 
nations of treafons, and the great inconveniences that arofe 
thereby, as if indeed the ftatute of 2 5 E. 3 . had not been 
made or in force. And tho moft of thofe judgijients and de- 
clarations were made in parliament ('*^); .fometimes by the 
king, lords, and commons ; fometimes by the lords, and af- 
terwards affirmed and enabled, as laws ; fometimes by a ple- 
nipotentiary power committed by a£l:s of parliament to par- 
ticular lords and others, yet the inconvenience, that grew 
thereby, and the great uncertainty, that happend from the 
fame, was exceedingly pernicious to the king and his kingdom, 

I Ihall give but lome inftances. Rot, Pari. 3. R. 2. n. 18. 
John Imperial, a public minifter, came into the kingdom by 
the fafe conduit of the king, and he was here murdered (m) ; 
and an indidment taken by the coroner upon the view of his 
body, " ^el cafe examine et dijpute entre les jeigneurs et com- 
" mons, et puis monjire au ray en plein parlement, efloit ilhques 
" devant noflre dit jeigneur le ray declare, determine, et ajfen- 

tus, qe tiel fait et coupe efl treafon, et crime de royal majefly 

blemy, en quel cafe y ne doet allouer a nuUi de enjoyer privilege 
" de clergy" (n) 

This declaration, it Is true, was made and grafted upon 
the claiife in the latter end of the ftatute of 2 5 £. 3 . touch- 
ing declaring of treafons by parliament. 

In the parliament of id R. 2. there was a large commif^ 

fion (0) granted by the king upon the importunity of certain 

4 great 

(*) This was the reafon why the fta- (m) Holin. Chron. f. 422. 60. I. 

tute of 25 £. 5. was not followed, be- (k) See ? Co. Inftit. 8- 

caufe that ftatute was not thought to ll- (0) See this commiiTion loR. 2. ca^. t. 

Jhit declarations in parliament. and State jTriais, f'ol. I. /. 3. 






84 Hijtoria Placitorum Coronj:. 



li 

u 
u 
(.1 



great lords, and of the commons in parliament, to the 
archbiiliop of Canterbury and otliers for the reformation of 
many things fiippoied to be amifs in the L^o\^ernment ; whicK 
commilhon was thought to be prejudicial to the kind's pre- 
rogative. Vide Rot. Pari 10 R. 2. ?z. 34. Rot. Pari. 21 R. 2. 
«. I r. 

After this, vi^. 2 5 Aug. i i i^. 2. the kinsj called together 
the two chief JLilHces, and divers others of the JLid<^es, and 
propounded divers queilions touching the proceeding in that 
parliament, and the obtaining of that commiffion ; and they 
gave many liberal anfwers, and among the reft, " ^lalem poe- 
" nam merentur, qui compukrum five arSlarum rcgem ad con- 
" fcntiendum confe6iioni diSlorum fiatuti, ordinationis, i^ com- 
" mijfionis ? Ad quam qu.-efiionem imanimiter refponderum, qucd 
*' funt, ut proditores, merito puniendi : Item qtialitcr funt iUi 
puniendi^ qui impc diver unt rcgem^ quo minus poterat exercere^ 
qu>i, ad regalia iff pr^rogativam fuam pertinuerum ? JJnani' 
miter etiam refponderunt, quod funt, m proditores, etiam pw 
niendi", with divers other queftions, and anfwers to the 
like purpoie. (p) 

This extravagant, as well as extrajudicial declaration of 
treafon'by thefe judges, gave prefently an univerfal oftenfe to 
the kingdom ; for prefently it bred a great infecurity to all 
perfons, and the next parliament craflino purificationis 1 i R. 2. 
there were divers appeals of treafons by certain lords appel- 
lors, wherein many were convict of high treafon under (Ge- 
neral words of accroaching royal porver, fubverting the realm, 
^c. and among the reft thofe very judges, that had thus 
liberally and arbitrarily expounded treafon in anfwer to the 
king's queftions, w^ere for that very caufe adjudged guilty 
of high treafon, and had judgment to be hanged, drawn, 
and quartered, tho the execution was fpared {q) ; and they 
having led the way by an arbitrary conftru6lion of treafon 
not within the ftatute, they fell under the fame fate by the 
like arbitrary conftrudion of the crime of treafon. 

4 Neither 

r/J See the queftions ami anfwers. to/^ except 7>f/?//rf;;, who was executed 
f^,^[ ' ^ "''•'• ■^•^- according to the judgment. See State 

(q) They were all banifhcd to Trc- "trials, Fcl.l. p. it,, 14. 



Hijtoria Placitorum Corona, 8^ 

Neither did it reft here, for the tide turned, and in RoU 
Pari. 2 1 ii. 2. «. I 2, I 3. the comniilTion before-mentionedj 
and the whole parliament of i i R. 2. is repeald, and a nevV 
appeal of treafon againft the duke of Gloucefter, earl of Arun- 
del, and the cortimiilioners in the former commiffion, and the 
procurers thereof under that common ftyle of accroaching 
royal power, whereupon divers of them were condemned, 
as traitors: and n. 18. there Vvere four points of treafon far- 
ther declared', vi^.' " Cbejcun qe conipafe, et pnrpofe la mort lb 
*' roy, ou de lui dcpofer, ou de fufrendre fon homage liege, oil 
" celuy, qe levy le people, ct chivaehe encountre le roy a faire 
" guerre deins foh realme, et de ceo foit dument attaint, et ad' 
" j«^f ^ en parlement, foit adjuggcX come traytor de haut tred' 
" fon ertcomtre la corone, et forfeit de lui, et de fes heyres^ 
** qecunques touts fes terres, tenements, te pojfeffwns, et iibertys, et 
" touts autres inheritemehts, qeux il ad, cni afcun autre a fon 
" oeps, ou avoit le jour de treajon perpetres, fi bien en fee tayl^ 
" come de fee fimpie, au roy. 

Thefe four points of treafon feem to be included within 
the ftatute of 2 5 E. 3. as to the matter of them, as Ihall be 
hereafter Ihewed ; but with thefe difterences, ^7'^. i . the for- 
feiture is extended farther than it was formerly, namely to 
the forfeiture of eftatcs-tail and ufes. 2. Whereas the anti- 
ent way of proceeding againft commoners was by indiftment, 
and trial thereupon by the country, the trial and judgment 
is here appointed to be in parliament. 3. But that, wherein 
the principal inconvenience of this aft lay. Was this, that 
whereas the ftatute of 25 £. 3. required an overt-a£l to be 
laid in the indiftment, and proved in evidence, this a£l hath 
no fuch provifton, which left a great latitude, and uncertainty 
in point of treafon, and without any open evidence, that 
could fall under human cognizance, fubjefted men to the 
great punilhment of treafon ibr their very thoughts, whic h 
without an overt-a£l: to manifeft them are not triable but by 
God alone. 

Thefe were the unhappy efftfts of the breaking of this 
great boundary of treafon, and letting in of conftruftive trea- 
Ibns, which by various viciflitudes and revolutions mifchieved 

Z all 



S6 Hi florin Placitorum Corona:. 



all parties firft or laft, and left a great unqiiletnefs, and 
uniettlednels in tlie minds of people, and was one of the oc- 
caiions of rlie iinhappinels of that king. 

Henry IV. ulurping the crown, and the people being fufii- 
ciently leiilible of the great mifchiefs, they were brought in 
by theie conlbuftive trealons, and the great inlecurity there- 
by. Rot. Pari. I H. 4. n. 70. the parliament of 2\ R. 2. is 
entirely repealed, that of \ \ R. 1. entirely revived ; and it 
was cna6led (r), that a pai liamentarv aiuliority be not for 
the future lodged in a committee of particidar perlons, as it 
was done 2 1 i^. 2. " Et auxint mejme nojhe jeignmr le roy de 
" Jon propre motif rcherceant, qe come in le dit parlement tenu^ 
" I'i^n zi.y fiieront ordcynes per eflatute plujeurs pains de trea" 
" J^-> fi ^'^ y ^^ '^^'^^^ ^.jcun home, qc fauoit, come il fe deufifa- 
" voir, de faire, parler, cu dire pur doubt des tielx paines, difl, 
" qe Ja vohmte eft tout outrement, qe en nul temps avener ajcun 
" trayjon foit (idjugges autrement qil ne fcufl ordeigncz;^ par fta,' 
" tute en temps de Jon noble aiel le roy E. le 3 . qe dieu affoyl ; 
*' dont les dits Jeigneurs et comens fuerent tres grandment 
" rejoyces, et mult humblemcnt ent remcrcierent nojlre dit Jeig^ 
" neur le royP (J ) 

Now altho the crime of high treafon is the greatefl: crime 
againft faith, duty, and human fociety, and brings with it 
the greatefl: and moft fatal dangers to the government, peace, 
and happineis of a kingdom, or ftate, and therefore is defer- 
vedly branded with the higheftignomuiny, and fubjefted to the 
greateil penalties, that the law can iniiift ; yet by thefe in- 
Ifances, and more of this kind, that might be gixen, it ap- 
pears, I. How neceilary it was, that there Ihould be fome 
fixed and fettled boundary for this great crime of treafon, 
and of what great importance the flatute of 2 5 £, 3 . w'as, 
in order to that end. 2. How dangerous it is to depart from 
the letter of that ftatute, and to midtiply and inhanie crimes 
into treafon by ambiguous and general w^ords, as accroaching 
of royal poxver, fubverting of fundamental larps, and the 
like ; and 3 . How^ dangerous it is by conflruftion and ana- 
logy to make treafons, wdiere the letter of the law has not 
2 done 

(r) See i H. 4, caj>. 3, 4 £=? y. (f) See i H. 4. caj). 10. 



Hifioria Placitorum Coron^, 87 

done it : for fiich a method admits of no limits or bounds, 
but runs as far as the wit and invention of accufers, and 
the odioufnefs and deteftation of perfons accufed will 
carry men. (?) 



CHAR XII. 

Touching the flatute of 29 E. 3. and the 
high treafons therein declared. 

A Parliament was held on Wednefday on the feaft of St. H/U. 
25 E. 3. at which parliament the ftatute declaring the 
points of treafon was made. The petition of the commons, 
upon which it was made, is Rot. Pari. 25 E. 3.^. 2. «. 17. 
in thefe words; " Item come les juftices noftre feigneur le 
" roy aflignes en diverles countees ajuggent les gents, qe font 
" empeches devant eux, come treitors par divers caufes dif^ 
" conus a la comen eftre treiion, qe plefe a noftre feigneur 

le roy par fon counlel, & par les graunts & fages de la 

terre declarer les points de trefon en ceft prefent parle- 

m.ent. 

" Roi'. Qiiant a la petition touchant treifon noftre feigneur 
" le roy ad fait declarer les articles de ycele en manner qe 
" enluit : ceft alfavoir, en cafe quant hom_e face compafer 
" ou ymaginer la mort noftre feigneur le roy, ou madame f i 
" compaigne, ou de lour fitz primer & heir ; ou li home 
" violaft la compaigne le roi, & la eifne file le roy nient 
" marie, & la compaigne a leiine fitz & heire du roi j & li 
" home leve de guerre contre noftre feigneur le roy en fon 
" royalme ; ou foit adhereant as enemies noflxe feigneur le 
" roy en le royalme, donant a eux eide, & confort en fon 
" royalme ou par aillours, & de ceo provablement foit at- 






" teinc 



CO This reafoning of our author Is ^rcxu'ions oi com^aj/iag the de^th of thc 
eijgally ftrong againit conftruflive inter- king. 



88 Hifloria Placitorum Cor once. 



" telnt de overt fait par gents de loiir condicion : Et ii home 
" contreface le grant feale le roy, on fa monole, & il home 
" apporte fauffe monole en cell royalme contrefalt a la mo- 
" noie dengleterre, 11 come la monole appellee Lujjebnrgh, ou 
" autre femblable a la dite monole dengleterre, iachant la 
" monoie eftre faufle, pur marchander ou paiement £iire en 
" deceit noftre feigneiu" le roy & de fon people : Et ji home 
" tuaft chancellor, treafurer, ou juftlce noftre feignenr le roi 
" del un baunk, ou del autre, juftice en eir, des aiiifez & 
" de touz auters juftlces alhgnez a oyer &; terminer, eiteantz 
" en lour places enfefant lour office. Et fait a entendre qe 
" en les cal'es fulnomees doit eftre ajuggee treifonce, qe eftent 
" a noftre feigneur le roi & a fa royale majefte, & de tiels 
" maneres de treifon la forfeiture des efcheets appertlent a 
" noftre feigneur le roy, libien des terres, & tenementz tenuz 
" des auters, come de lui mefme : ouefque ceo il y ad autre 
manere de treifon, ceft aftavoir, quant un fervant tue fon 
meftre, une feme, qe tue fon baron, quant home fecular 
ou de religion tue fon prelate, a qi il doit foi & obedl- 
*' ence, & tiel manere de treiion doun forfeiture des efcheets 
" a chefcun feigneur de fon fee propre ; & pur ceo qe plu- 
" fours autres cas de femblable treifon purront efchaier en 
" temps avenir, queux home ne purra penfer ne declarer en 
" prefent) affentu eft qe qui autre cas luppofe treifon, qe 
" neft efpecifietz peramont, aviegne de novel deuant afcuns 
" juftices, demoerge la jultice fanz aler a juggement de 
" treifon, tantque per devant noftre feigneur le roy & fon 
" parlement loit le cafe monftre, & declare, le quel ceo doit 
" eftre ajugge trefon, ou aut' felonie ; & ft par cas afcun 
" home de ceft royalme chivache armee defcovert, ou fecret- 
" ment ad gentz armez contre afcun autre pur lui tuer ou 
" defrobber, ou pur lui prendre & retener tanque ii face 
*' fyn ou raunceon pur fa deliverance avoir, neft pas lentent 
*' du roy & du fon counleil, qe en tiel cas folt ajugge trel- 
" fon, einz foit ajugge felonie, ou trefpafs folonc la ley de la 
*' terre auncienement ufee, & folonc ceo qe le cas demand : 
" Et ft en tiel cas, ou autre femblable devant ces heures af- 
" cun juftice eit ajugge treifon, & par ycelle caufe les terres 
i "&te- 



Hifloria Placitorum Corona. 89 



" & tenementz devenuz en la maine noftre felgncr.r le rol coins 
" forfaitz eient ks cheifcs fei^nours de fee lour efcheets des tc-* 
" nementz de eux teniiz, le quel qe Ics tenementz loicnt en la 
" maine le roi ou en main dauters par doun, cu en autre ma-' 
" nere : favant toutes foits a noftre leigneur le rol Ian, Sc le 
" waft, & auters forfeitures des chatelx, qe a lui attient en les 
" cas fufnomez, Sz qe briefs de jcire facias vers les tcrre-re- 
" nants foient grantez en tiel cas lanz autre original & fanz 
" ajouer la proteftion noftre leigneur le roi en la dite iuyte ; 
" &: de les terres, qe font in la maine le roi, loient grantes 
" briefs as vifcontz des countees la, ou les terres Icrront, de 
" oufter la maine fanz autre delaie.' 

llie ftatute itfelf is drawn up upon this petition and an- 
fwer, and differs nothing in fubftance from the anfwer to the 
petition upon the parliament-roll : the ftatute iticlf runs in 
thefe words ; " Item, whereas divers opinions have been be- 
'' fore this time in what caie treafon lliall be faid, ar.d in 
" what not, the king at the requtft of the lords and of the 
" comm.ons hath made a declaration in the manner, as here- 
after followeth; that is to lay, when a man doth compafj 
or imi^gine the death of our lord the king, or our lady his 
queen, or of their eldeft fon and heir ; or if a man do 
" violate the king's companion, or the king's eldeft daughter 
" unmarried, or the wife of the kind's eldeft ion and heir ; 
" or if a man do levy war againft our lord the king in his 
" realm, or be adherent to the king's enemies in his realm, 
sivins to them aid and comfort in the realm or eliewhere, 
and thereof be provably id) attainted of open deed by 
the people of their condition ; and if a man counteifeit the 
king's great or privy feal, or his money ; and if a man bring 
f die money into this realm counterfeit to the money cf Eng- 
land, as the money called Lujljhurgh, or other like to the faid 
money of England, knowing the money to be fa lie, to mer- 
chandize or make payment in deceit of our lord the king 
" and of his people; and if a man Hay the chancellor, treafurer, 
" or the king's jull:iccs cf the one bench or the other, julti^es 
" in eyre, or juftices of alfize, and all other jufticcs aliigncd 

A a "to 

ia) See ; Co. Inflir. p.ii. 



po Hiftoria Placitormn Corona. 

" to hear and determine, being in their places doing their 
*' offices. And it is to be underftood, that in the cafes a- 
" bove rehearfed that ought to be judged treafon, which 
*' extends to our lord the king and his royal majefty, and 
" of fuch treafon the forfeiture of the efcheats pertaineth to 
*' our lord the king, as well of the lands and tenements holden 
" of others, as of himfelf : and moreover there is another man- 
" ner of treaion, that is to fay, when a fervant flayeth his 
" mafter, or a wife her hufJDand, or when a man fecular, or 
*' religious, flayeth his prelate, to whom he oweth faith and 
*' obedience ; and of fuch treafon the eicheats ought to per- 
'' tain to every lord of his own fee : and becaufe that many 
*' other like cafes of treafon may happen in time to come, 
*' which a man cannot think nor declare at this prelent time, 
" it is accorded, that if any other cafe fuppofed treafon, 
*' which is not above fpecified, doth happen before any ju- 
" ftices, the juftices ihall tarry without any going to judg- 
" ment of the treafon, till the caufe be Ihewed and de- 
" dared before the king and his parliament, whether it ought 
to be judged treafon, or other {b) felony : and if par cafe 
any man of this realm ride armed covertly, or lecretly 
with men of arms againft any other to flay him, or rob 
him, or take him, or retain him, till he hath made fine 
" or raniom for to have his deliverance, it is not the mind of 
" the king, nor his council, that in fuch cafe it Ihall be 
" judged treafon, but Ihall be judged felony, or trefpafs ac- 
" cording to the laws of the land of old time ufed, and ac- 
" cording as the cafe requireth. And if in fuch cafe, or 
" other like, before this time any juftices have judged trea- 
" fon, and for this caufe the lands and tenements have 
" come into the king's hands as forfeit, the chief lords of the 
" fee fhall have the efcheats of the tenements holden of 
" them, whether that the fame tenements be in the king's 
" hands, or in others by gift, or in other manner ; faving 
" always to our lord the king the year and the waft, 
** and the forfeitures of chatties, which pertain to him in 
4 " the 

(J/) The old tranflation feems here ing abbreviated may be either autre or 
to be preferable, "oia. elfe j for aut' be • atitremeut. 






Hifioria Placitorum Cor once. 91 



u 



" 'the cafes above-named ; and that writs of fcire facias 

" be granted in fuch cafe againft the land-tenants without 
other original, and without allowing any protection in the 
faid fuit ; and that of the lands, which be in the king's 
hands, writs be granted to the fheriffs of the counties, 

" where the lands be, to deliver them out of the king's 

" hands without delay." 

The feveral high treafons hereby declared are thefe ; 

1. I"he compalTing of the death of the king, queen, or 
prince, and declaring the fame by an overt-a61:. 

2. The violation or carnal knowledge of the king's con- 
fort, the king's eldeft daughter unmarried, or the prince's wife. 

3 . The levying of war againlf the king. 

4. The adhering to the king's enemies within the land or 
without, and declaring the fame by fome overt-a£l. 

5. The counterfeiting of the great feal or privy feal. 

6. The counterfeiting of the king's coin, or bringing couar 
terfeit coin into this realm. 

7. The killing of the chancellor, treafurer, juftices of the 
one bench or the other, jultices in eyre, juflices of afflfe, ju- 
ftices of oyer and terminer in their places doing their ofSces. 



CHAP. XIII. 

Touching high treafon in compaffing the 
death of the king, queen or prince. 

THE firft article of high treafon declared by the llatiite. 
of 2 5 £. 3 . is this, and in thefe words : 
" When a man doth compafs or imagine the death of our lord 
" the king, or of our lady the queen, or of their eldefi fon and 
" heir:\ 

Upon 



pi Hiftoria Placitorum Corona. 

Upon this divifion there will be thefe confiderations. 

I. What fiiall be faid a man that compajfeth. 

II. What Ihall be laid the A/w^, (jueen, or their eldejl fon. 

III. What Ihall be faid a compajjing or imagining of any of 
their deaths. 

IV. What iliall be evidence, or an overt-aSi to prove fuch 
imagining. 

V. I'he form of an indiclment of compalTing the death 
of the king, queen, or prince. 

I. What Ihall be faid a man compajfing, ^c. 

■ I'he general learning of this point in relation to natural, 
accidental, or civil incapacities hath been at large handled in 
the former ch:;ptcrs; but there is fomething peculiar to the 
cafe of high treafon, which is confiderable in this diviiion. 

\{ an alien amy comes into England, and here compafs the 
death of the king, queen, or prince, this is a man compaf- 
hng \Yithin this law ; for, tho he be the natural fubjedl; of 
another prince, yet during his reiidence here he owes a local 
alligeance to the king of England, and tho the indi£lment 
Ihall not ilyle him naturalis jubditus, nor ftyle the king natura- 
km dominum, yet it Ihall run proditoric isf contra ligeanti-e fu,^ 
debitum, Co.RC. p. $- '] Rep. Calvin s cafe. (a). Dyer 1^4. 

. If an alien amy lubjc6l of another prince comes into this 
kingdom and here fettles his abode, and afterwards war is 
proclaimd bet\^'een the two kings, and yet the alien continues 
here and takes the benefit of the king's laws and protection, 
and yet compafTes the death of the king, this is a man com- 
palling within this law ; lor, tho he be the natural lubjefl of 
another prince, he ihall be dealt with as an Engli/Jj lubje61: 
in this cafe, unlefs he firft openly remove himiell from the 
king's proteftion by palling to the other prince, or by a pub- 
lic renunciation of the king of England's prote£lion, which 
hath fome analogy with that, which they call diffidatio, or 
defiance. 

And the fame law I take to be, if the fubjeft of a forein 

prince in war with ours come into England and here trade 

4 and 



Hifloria Placitorum Coronae. 95 

and inhabit either as a merchant, dweller, or fojourner, if fuch 
a perfon compais the death of the king, he may be dealt 
with as a traitor, becaufe he comes not hither as an enemy, 
or by way of hoftility, but partakes of the king's prote6lion : 
with this agrees the cafe of Stephana Farrara de Gama, and 
Emanuel Lewes Tinoco, Portuguese born, and then fubje£ls to 
the king of Spain, between \\'hom and the queen of England 
there was then open war, who were indifted and attaint of 
high trealon for conipiring with Dr. Lopecii to poifon the 
queen {b), 3 7 E//';^. Calvin s cafe. 7 Co. Rep. p. 6. 

And, tho they came hither with the queen's proteflion, it 
alters not the cafe, for every foreigner livins; publicly and 
trading here is under the king's protedlion : and this appears 
by the ftatute of Magna Chana, cap. 3 o. " Et fi fint de terra 
" contra nos guerrina, isf tales inveniantur in terra nojira in 
*' principio guerre, attacbientiir fine damno corporum [uorum vel 
rerum, donee fciatur a nobis vel a capitali jufliciario noflro, 
quomodo mercatores terr^ noflro traflentur, qui tunc invenian- 
tur in terra ilia contra nos guerrina ', ^ fi nojiri falvi fint ibi, 
alii falvi fint in terra nofiraJ' 
The ilatute fpeaks indeed of mercatores, but under that 
name all foreigners living or trading here are comprifed. 

And therefore in antient times before the fubjedfs of fbrein 
princes in hoftility reliding here were dealt with as enemies, 
a proclamation iiTued for their avoidance out of the king- 
dom ; and in default of their avoidance within the time 11* 
mited by fuch proclamation they loll the benefit of the king's 
prote61:ion. 

And after fuch proclamation, yet upon caution given fome- 
tlmes by mainprife de fe bene gerendo, fometimes by oaths of 
fidelity to the king, they had fometimes fpecial, and often* 
times general prote£lions, notwithftanding fuch hoftility. Rot, 
Vajcon. 18 £. 2. 2 1, 24. Pat. 14 H. 5. part. 2. m. 34, 35. 

The ftatute of the Staple (c), cap. 17. hath made pro- 
vlfion for merchants ftrangers, in cafe war Ihall happen be- 
tween their prince and the king of England, vi^. that they 
fhall have convenient warning by forty days by proclamation 

B b to 

Cl>) FUe Camdeni Eliz. ful anno 1 594. (c) 27 £ 3, 



u 



94 Hijloria Placitoriim Corona. 



to avoid the realm ; and if they cannot do it by that time 
by reafon of fome accident, they lliall have forty days morcj 
and in the mean time Hberty to fell their merchandizes ; du- 
ring thefe eighty days they have the king's protection, and if 
they do any treafonable a6l above-mentioned, they iliall be 
indicted of treafon, notwithftanding the hoftihty between 
their fovereign and the king of England ; but it feems, that 
if he remain here in a way of trade after proclamation fo 
made, and the time of his demurrage allowed by this aft, 
he may be dealt with as an alien enemy ; but yet if he after 
that time continues in his way of trade or living as before, 
and lliall then confpire the king's death, i^c. the king may deal 
with him as an alien enemy by the law of nations, or as a 
traitor by the law of the land ; becaufe de fa6io he continues 
as a fubjeft, and under the benefit de faSio of the king's pro- 
teftion. 

Therefore the general words in Co. P. C. p. 5. wherein he 
fuppofeth an alien enemy cannot be guilty of treafon, but 
mufl be dealt with by m^artial law, are to be taken with that 
allay, that is given in Calvin s cafe, fol. 6. k in thefe words : 
" But if an alien enemy come to invade this realm, and be taken 
" in war, he cannot be indiBed of treafon, for the indictment 
*' cannot conclude contra ligeantix luas debitum" : the like may 
be laid of iuch as are fent over merely as fpies by a foreiii 
prince in hoftility ; but an alien enemy living here in the con- 
dition of an inhabitant or trader may be guilty of treafon 
as well as an alien amy, for he doth it proditorie and trea- 
cheroufly, and againll the obligation that lies upon him, as 
v/ell as any others, to be true to the prince, the benefit of 
whole laws and prote6lion he holds, lo long as he is under 
the fame. 

But yet this is obfervable upon the ftatute of Magna Charta, 
cap. 3 o. and what hath been before faid, i . That if an alien 
enemay comes into England after the war begun, and lives 
here under the king's protedion as a fubjeft, yet if he prac- 
tife treafon againft the king during fuch his abode here, he 
may be indifted of high treafon contra ligeantice fiu debitum. 
z. Yet fuch an alien, coming in after the war begun without 
3. the- 



Hi florin Placitorum Corona. 9<j 

the king's licence or fafe condii£l:, cannot claim the privilege 
allowed by the ffcatute of Magna Ghana, cap. 3 o. to thofe that 
were here before the beginning of the war. z Co. Infi. 58. 
3. That by the law of England debts and goods found In this 
realm belonging to alien enemies belong to the king, and may 
be feized by him. 19 E. 4. 5. 7 E. 4. i 3. and therefore in 
debt brought by an alien enemy it is a good plea In bar pri- 
ma facie, that the perfon is an alien born in G. in partibiis 
tranjmarinis fub ohe-diehta Phillppi regis Hilpani^ hojlis ^ ini- 
mici domini regis ; lo that, tho to iome purpoles he is under 
the king's proteftion, fo as to be guilty of treafon, if he con- 
fplre againft the king's life, yet his goods are not by law pri- 
vileged from confilcation, and the reaibn Is, becaufe he might 
fecure his goods by purchafe of letters patents of denization, 
and he fhall not take away the king's rights by his negle£t 
therein. 

. But then, what if In truth our merchants have liberty of 
reclaiming their goods and recovering their debts in the hoillle 
country ? May the merchant plaintiff reply with this claufe 
©f the ftatute of Magna Ghana, that " Noftri mercatores falvi 
J* fimt ibi, ^c." ? 

I anfwer, he cannot, for It Is referved to another kind of 
trial ; for the words are " donee fciatur a nobis vel a capitali 
" juflicidrio noflro, quomodo mercatores nojiri ibi traBenmr.'^ 
The king mull be afcertained of the truth of the fa£l:, in 
whofe cognizance It beft lies ; and If he be fatisfied, that our 
merchants are permitted to recover their debts in the hoftile 
kingdom without impediment or confilcation, this is to be 
notified and declared by fome proclamation, or Inftrument 
under the great feal declaring the faft, and allowing them to 
profecute for their debts here ; and then, by virtue of this fta- 
tute or public declaration, the merchant alien plalntijft may 
reply with this fpecial matter in maintenance of his adilon. 

Here fomewhat may be of uie to be fald touching trea- 
fons by embafladors of forein princes, wherein altho fome- 
times realon of ftate and the common Intereft of princes do 
de fa^o govern In thefe cafes, yet it will not be amiis to 

conlider 



5)6 Hijloria P lac it or urn Corona, 



conlider the opinions and pra£lices of former times in relation 
to this matter. 

Firfl, If an EngUfljman born, tho lie never took the oath 
of alligeance, becomes a iworn iubje£l to a fbrein prince, and 
is employed by him into England as his minifter, agent or 
embalTador, and here confpires againft the king's life, he fliali 
be indifted and tried for treafon, as another fiibje£l lliould 
be; and the reafon is, becauie no man can iTiake off his 
country wherein he was born, nor abjure his native foil or 
prince at his pleafure. This was the cafe of Dr. Story^ 
who had fworn alligeance to the crown of Spain, and was 
here condemned and executed for treaion. Vide Camdens 
Eli^. 1 4 Eli^. p. \6?i. (d) 

Secondly, Rut if a foreiner being the agent, minifter or 
embaffador of a forein prince either in amity or enmity with 
the king of England come over with or without the king's 
fafe condu£l, and here confpire againft the life of the king, 
or to raife rebellion or w^ar againft him, fome have been 
of opinion, that he may be indi£led of treafon ; but by 
the civilians he cannot, becaufe he came in as a forein em- 
baftador reprefenting the perfon of his prince, and therefore 
is not to be fo dealt with in fuch cafe, but by the law of 
nations may be dealt with as an enemy, not as a traitor; 
and tho he have the prote6lion and lafe condu£l of the king 
of England, yet it is under a fpecial capacity, and for a fpe- 
cial end, namely, as a forein agent ; but if he be criminally 
proceeded againft, it muft be as an enemy by the law of 
war or nations, and not as a traitor ; but how far and in 
what cafes he may be dealt with as an enemy, remains 
to be farther conlidered. Camden s Eli^. Jub anno 1571, 
p. 164. 

Thirdly, Therefore thofe, that are moft flji£l after the 
rights and privileges of embafladors, yet feem to agree, thac 
if he do not only confpire the death of the king or the rai- 
(ing a rebellion againft him, but a6lually attempt fuch an a61:, 
as actually or interpretatively is a confummation thereof, tho 
3 poilibly 

(d) Biglijh F<>li9, 



Hifioria Placitoriim Coroiue, 97 

poffibly the full effeft thereof do not eniiie, yet lie p.imv be 
dealt withal as an enemy, and by the law of nations he may 
be put to death j as if he fliould llab or poifon the prince, 
and yet doth not kill hini, or raife an aaual rebel fit)us ar- 
my, or lliould le-^^ an aclual war againll: the prince, to 
^^'hom he was fent, and in that prince's country, as K?- 
h'ms {e) the Roman embaflador to the GauJs, by challenging 
and fighting with the champion of the Gmils ; Phitanh in I'ita 
Num^, the prince, to whom he is fent, may without contuh- 
ing the prince, that fends him, inHidl; death upon luch an 
embalTador by the law of nations, as an enemy : " Confmn' 
*' mat a am em jimt^ qiM eotifque prodii^d funt, quo proditci ah 
" hominihiix folent, ^ qiu deUnquendi jincm flatucre Jolemns. 
" Vide Albcricus Gentilis, Lib. 11. cap. 2. de kgationibus." 

Fourthly, But in cafe of" a bare confpiracy againil: tlie life 
of the king, or a confpiracy of a rebellion or change of go- 
vernment, novanm rerum molimina, there is great diverlity 
of opinions among learned men, how far the privilege of an 
einballador exempts him from penal profecution as an ene- 
my for fuch conijpiracies or inconfummate attem.pts, that do 
not proceed farther than the machination, felicitation or con- 
fpiracy. 

Upon an attempt of this nature by the bifliop of Rolfe, a- 
S;ent and enibalBidor of the queen of Scots, 1 4 £//:^. tlie que- 
ftion was propounded to Lenses, Dale, Drury, Aiibry, ar.d Jones, 
doflofs of law, vi^ 

" Whether an embaflador, who ftirrcth up rebellion a- 
*' galnil the prince to whom he is fent, iliould enjoy the pri- 
** vileges of an embaffulorj and not be liable to the punilh- 
*' ments of an enemy ? " 

I'hcy anfwered, that fuch an embaitador hath by the law 
of nations, and by the civil lav/ of the Romans foifeited all 
tlie privileges of an embafllidor, and is liable to punilhmcnt. 
Sec the reif of the refolutions touching this matter Camden s 
Ells: {lib anno i 57 i. ]>. 164, \6<^. zj' ibidem p. 370. 

Mcreupon he was committed to tlie Toner, but yet no 
criminal procefs againft him as an enemy. 

C c And 

(e) r:ihl!'.i AhiljiJl-'S, 



pS Hifioria Placitorum Coronas, 

* — — ■ _^ -— ■— ■ ,.. 

And Mendo^a the Spani/Jj embalTador, who here in England 
f.itered and encouraged treafon, was not dealt with acct)rd- 
ing to the iitmoft feverity, that poffibly in fuch cafes mi"ht 
be iifed, but was only fent away, fub mino 2 7 £//V Camden s 
Eli^.p.2^6. The lord V Aubejpine alfo, tht French embaf- 
lador, that confpired the queen's death, was not proceeded 
againft criminally, but only reproved by Burghky, and advifed 
to be more careful for the future. Camden s Eli^.ful; anno 1587, 
^ 37^. 379. 

And upon thefe and fome antient inftances among the Ro- 
mans and Carthaginians learned men have been of opinion, 
that an embaffador is not to be punifhed as an enemy for 
traitcrous confpiracy againft the prince, to w^hom he is fent 
but is only to be remitted to the prince, that fent him. Albe- 
ricus Gent His de Legationibus, Lib. II. cap. i 2. Grot ins dc Jure 
Belli, Lib.U. cap. i8.(/), who gives thefe two inftances in 
confirmation thereof. 

The truth is, the bufinefs of embaffadors is rather mana- 
ged according to rules of prudence, and mutual concerns and 
temperaments among princes, where poffibly a fevere con- 
ftruftion of an embaffador's aftions, and profecutions of them 
by one prince may at another time return to the like difad- 
vantage of his own agents and embaffadors ; and therefore 
they are rather temperaments meafured by politic prudence 
and indulgence, than according to the ftrift rules of reafon 
and juftice ; for furely confpiracies of this kind by embaffa- 
dors are contrary to the truft of their employments, and 
may be deftru6live to the ftate whereunto they are fent, and 
according to true meafures of juftice deferve to be punifhed, 
£S a£l:s of enmity, hoffiility and treachery by private perfons. 

And altho of all hands it is admitted, that the prince, to 
whom the embaflador is fent, is the judge of the mifcarria^'-e 
of fuch forein embaffador without any application to the 
;iiail:er, from whom he is fent, and without any adfual dedi- 
tion or giving him up to the judgment of the law; yet they 
alTign this reafon of the difference between a bare confpiracy 
or .machination againft the prince, and an :.£liial attempt of 
5 treafon, 

(f) hi ttotis aJ §. 4, ». 5, 



Hiftoria Placitorum Corona. 99 



treafon, whether againft his perfon or government, which 
hath attained as great a confummtaion, as fiich embaflador is 
able to efie£l, as procuring the wounding of the prince, or 
an aftual attempt to poifon him, tho death enfue not, or an 
aftnal railing of a rebelhous army againft him ; becaiife in 
thefe latter the mifchief is confummate, as far as the embaf- 
fador could efteft it, and fo prohibited not only by the civil 
and municipal laws, but by the laws of nations ; but incon- 
fummate machinations, according to their opinions, are raifed 
to the crimen Ufs majefiatis by civil or municipal la^^^s or 
conftitutions ; and they think it too hard, that an embaftador 
or forein agent, who doth juflincre perfonam principis, iKould 
be obnoxious to a capital puniiliment for bare machination 
or confpiracy, which is a fecret thing and of great latitude ; 
but thisj as I have faid, is rather a prudential and politic 
coniideration, and not according to the ftri6l meafure of 
juftice. 

But now, altho it fhould be admitted that a forein embaf- 
fador committing a confummate treafon is not to be pro- 
ceeded againft as a traitor, but as an enemy ; yet if he, or 
his afTociates commit any other capital ofFenfe, as rape, mur- 
der, theft, they may be indicted and proceeded againft by in- 
di£l:ment in an ordinary courfe of juftice, as other aliens com- 
mitting like oftenfes ; for iho thofe indiftments run contra pa- 
cem regis, yet they run not contra ligeanti^ jtu dehitum ; and 
therefore, when in the late troubles the brother and tervants 
of the 'Portugal embalTador committed a murder in the Ex* 
change {g\ they Were tried and convifted by a fpecial com.mif- 
lion of oyer and terminer dire6led to two judges ot the com- 
mon law, fom.e civilians, and fome gentlemen, to proceed 
according to the ordinary courfe Jecundum legem isf confuetw 
dinem regni Anglix, whereupon fome of them were con- 
vi6l by jury, and had judgment ; and, as I remember, 
fome of them were executed (Jo). And yet many civili- 
ans 



(s} 'T\\c Kciv Exchitnge in t\\c' Strand. Ne'd-gare, but he was refaTcen, ani{ 

• (h) Y)iin Tcntalcon Sa, theembaffk-. beheailcd onTo^xer-hill, 7'V/r lo, i<5'54. 

dor's brother, was condemned to die for the f-imc day the embaflador finned the 

it; he had like to have prevented his peace between Muglaiid and 'Pvrtu- 

execution by making his cicape out of gaL 



lOO Hijloria Placitonim Corona. 

ans (/■) allow the fame privilege to the comites legati, as to the 
emballador himlelf. 

And the difference between proceeding againft an alien 
(whether embaffador or other) in cales of felony and treafon, 
is well illuftrated by the book of 40 4(7^ 2 5. where a Norman 
captain of a ihip with the help of EnglifJj mariners commit- 
ted robbery and piracy upon the narrow feas ; the Engliff) 
pirates were convi£l and attaint of trealon (k\ but the Nor- 
man captain \\^as attaint of felony, but not ot treafon, be- 
caufe it could not be faid contra Ugeanti^ fiu dcbitmn. 

The queen confort the wife of the king, or the huftand 
of the queen regent, compaffing the death of the king her 
hufband or the queen regent his wife, are perfons compalling 
within this a£l:. Co. P. C. p.2. 

II. As to the fecond inquiry, what fhall be fiid a king^ 
queen, or their eldefl Son, within this law. 

I . The words our lord the king, i^c. extend to his fuccef- 
for, as well as to him. (/) 

1. Becaufe it is a declarative laW. 

2. Becaufe ufually a£ls of parliament fpeaking thus gene- 
rally, and not confining it to the perfon of that king, when the 
law pafTed, include his jucceffor ; therefore the itatute of 8 H, 6. 
cap. II. iTjH.'^. for Br avers, 27 H.2. cap. 24. that were li- 
mited to continue during the pleafure of our lord the king (m)f 
continued after that king's death ; Mich. 3 8 1^ ^ 9 Eli^. Cro. 
Eli^. 513. Lord Darcic's cafe. The ffatute of 1 1 H 7. c. i. 
of aiding om- lord the king in his wars extends to the fuc- 
ceffor (w). Hill. 10 Jac, 12 Co. Rep. 109. M. i^Eli^. Moor» 

i-]6. 

0) 25/5. Z/Z'. XLVIII. tit. 6. ad leg. name tlie king witliout the addition of 

Jul. de vi piihlica, l.-j. Grot, de jtir. his heirs and j'acceff'ors. \o H. j. ■;. h. ic 

'^cili, Lih. II. cap. 18. §. 8. is fuid by Kehle wi:h relation to 9 H. 6. 

ik) For before the 25 Z^. 3. piracy was caf. 2. and not denied by the court, that 

petit treafon. Co. 'P. C. 113. and tho this where a llatute limits to contini'.c Jb long 

cafe becjuoted in the 40 2:. ;. yet it mul^ cs it fJ.'.^.ll fleafe our lord the ki7:g, it 

be intended to have happcnd before the continues in force, if no proclamation be 

llatute of J5 jP/^. :. becaufe piracy, not made xo the contrary in the times of 

being enumerated therein among the that kir.f; or of any of his fucceflors. 
fpecies of treafon, has never been countt/d (;^) This llatute comes not up to the 

treafon fince that liatute. Cc. '/". C 8. point, becaufe the words of it are nor, 

{I) Vide Co. 'P. C. f. 6. cur lord tie king, bt>t, the king ^?;/ 

■ (m') Of thcfe fiatutes the firft only is fovcreign lord of this land for the 

t) limited; but the 15 //. 8. iv;/. 4. yi\7. innchi'mg. Our author /ecms to have in- 

5, 14. and %i U.'i. oajj. 24. fiS. j -. ciiiy cciidcd ths Ir^f'; Ihru.te uf i -, //. 7. called 



Hiftoria Placitorum Corona. loi 



I'] 6. Coke Litt. 9. b. (0). But the ftatiite of 34 ^ 3 5 H 8. 
cap. z6. giving power to our faid lord the king to alter the 
laws of Wales, died with him (p) ; yet in majorem caiitelam 
it was fpecially repeald by the ftatute of 2 i Jac, cap. i o. 

2. The heir of the king is a king within this a6l the 
next moment after the death of his anceftor, and commenceth 
his reign the fame day the anceftor dies ; and therefore the 
compaffing his death before coltenation, yea before prociamr.- 
tion of him, is a compaffing of the king's death, for he is 
a king prefently upon the anceftor 's death ; and the proclama- 
tion or coronation are but honourable ceremonies (q) for the 
farther notification thereof: refolved i Jac. in the cafe of 
Watfon and Clerk. Co. P. C. p.-j. 

3. The queen regent, as were queen Mary and queen Eli' 
^abeth, is a king within this s^Q. (r) 

4. A king de faSlo but not de jure (f\ fuch as were H. 4." 
H. 5. H.6. R. y H. 7. being in the adual pofteffion of the 

D d crown 



'Poynhig's aft, lipoh which aft a doubt 
was conceived, whether it extended to 
the fucceflbrs of H. 7. for that the a£l 
fpeaks only of the king generally, and 
not of his fucceflbrs : the chief juftices, 
chief baron, attorney, and follicitor gene- 
ral were of opinionj that the word khig 
imported his politic capacity, which ne- 
ver dies ; and therefore being fpoke in- 
definitely, extended in law to all his fuc- 
ceflbrs, and was fo expounded by an Irijli 
aa in the 5 S£J 4 1>bil. ^ Mar. 12 Co. 
Rcf. 109. 

(0) The cafe in Moore relates to fla- 
tutcs during the pleafure of the king : 
the words are, " IVabnefley moved a 
" queflion, whether the demife of ths 
" king determines a ftatute limited to 
" continue during the king's picafure, and 
" the whole court agreed that the demife 
*' of the king determines his will." 

(p) The words of that ftatute, §. 1:9. 
arc, " T'hat the king's mojl royal majefiy 
" fiallandtnr.y, &c. as to his moft excellent 
" icifdom and difcretion Jfmll he thought 
" convenient ; and aljbtomake lairs, 8ic. at 
*' his rnajefly's pleafiire." It was refolved 
by the jufticcs Hil. 5 ^ac. 12 Co. Rep. 
48. that this was a temporary power, 
and confined to the perfon of king Hen- 
ry VIII. VideTloixden ii6.h. l£c. 458. rr. 



Cy) The coronation is fomething more 
than only an honourable ceremony, for it 
is a folemn engagement to govern according 
to law, which was always required by 
the antient conftitutinn of the kingdorh. 
^rornpton fpeaking of the coronation of 
W.\. fays the archbiflipp of lork per- 
formed the office, Ip^umqne Gulielmum 
regem ad jura ecckjits Anglicanse tuendn 
^ confervanda, populumque fuinn reSle 
regendum, £^ leges rettas flattiendum 
facratncnto folemniter adjlrinxit ; and 
Sra£l. I.il. III. cap. 9. fays that the 
king g{ England dehet in coronatione fua 
in nomine Jefn Chrijli prteftito facra- 
tnento h^c tria promittere popido Jihi 
fuhdito, ^c. See alfo iW.^M. cap. 6. 

(j) Vide' Co. T.C. p. 7. This appears 
by the declarative law in favour of queen 
Mary, i Mar. cap. i. feff. 5. 

(y) This diftinciion, which with re- 
fpeft to the kingly office was never known 
in our law before the ftatute of i E. 4. 
fcems to have been purpofely invented to 
ferve the turn of the houfe of Tork j 
nr.r do I find any fuch diftinflion ever 
mentiond or fuppofed in any of our an- 
tient law-books, fave only in Sagot's 
cafe, 9 E. 4. I. Ir. cited by our author 
p. 61. for the doubt conceived by Mark- 
ham, 4 £. 4. 4V <?• concerning the au- 

uthority 



101 Hi/lor i a Placitonim Cor once. 



trown is a king within this a61:, fo that corapafling his 
death is treafon within this law ; and therefore the 4 J5. 4. 

20. a. 



thority of coroners chofen in the time 
of H. f>. was not founclcJ (as fomc have, 
fuppofed) on H. 6. being Only king de 
ffiLlo, but on another point, viz. whe- 
ther the demife of the crown tlid not 
determine the power of coroners, as it 
docs the commiflions of judges and o- 
ther commiffioncrs ; and as to 7ir.gct\ 
cafe, if carefully confiderd, it will but 
little ferve the purpofe of fuch a di- 
iHndion, for the principal point in that 
cafe was concerning the validity of let- 
ters patent of denization granted to Sa- 
got by H. 6. whether they were void by 
the adl of I E. 4. i'et forth in the plead- 
ings j this point was not argued by the 
judges, but by the ferjeants and appren- 
tices. () E. ^. z. a. it will therefore be 
ncccflary to diftinguifli the difcourfe of 
the counfel from the refolution of the 
court. 

S^gofs counfel afferted, " That all 
" judicial affs relating to royal jurif- 
" diftion, which were not in diminution 
*' of the crown, tho done by an ufurper, 
" would neverthelefs bind the king de 
" jure upon his regrefs, that H. 6. was 
*' not merely an ufurper, the crown ha- 
" ving been entailed on him by parlia- 
*' ment, that 'Bagot's denization was an 
" advantage to the prince on the throne, 
" for the more fubjeits he had, the bet- 
" ter it was for him; and they likened 
" it to the cafe of recoveries fuffered in 
" a court-baron, while the difl'eifor was 
" In poflcffion, which would continue in 
" force notwithfianding the re-entry of 
" the dlffeifee." 

This was all that could be expefled 
for them to fay, confidering that E. 4. 
was then on the throne, and they were 
obliged to admit, that grants of the re- 
giil revenue made by H. 6. were void a- 
gainll E. 4. becaufe the aft of parlia- 
ment of E. 4. which declared //. 4. //. j. 
und H. 6. ufurpers, vefted in E. 4. all fuch 
f/2aj2ors, cajlles, bcmrs, lihertics, fran- 
chife<:, reverfions, remainders, &c. and 
ell hereditaments ivith tFeir appurte- 
■nitneei, ivhatfocuer they ivere, in England, 
Wales and Ireland, and iji Calais, as kivg 
Richard //. had on the fcaft of St. Mat- 
thew the fxenty-third year of hii reign 
in right of the croivn of England at2d 



lordjfjip of Ireland: all mefne grants there- 
fore of fuch manors, ^c. were by this 
a£l indifputably defeated. 

The counfel on the other fide objefled, 
" That the letters patent of denization 
" were void, for that the king ought 
" not to be in a worfe condition than a 
" common perfon ; and that if a com- 
" mon perfon were difleifed and re-cn- 
" tred, hisre-entry would defeat all mefne 
" afls ; and that therefore E. 4i being 
" in by defcent from king Richard, and 
" this ail being but an affirmance of the 
" common law, his regrefs would avoid 
'■ all afts done by the ufurper, for which 
" reafon provifion was made in that ail: 
" for grants of wards, licences of mort- 
" mains, charters of pardon and judicial 
" afls, but no provifion was made for 
" grants of deiiization ; that the patent 
" in controverfy was to the difadvantage 
" of the king, fincc it was not reafon- 
" able, that fuch an alien /hould be 
" made his fubjcft againft his will, 
" for by the fame reaibn H. 6. might 
" have made twenty thoufand French- 
" J7ien denizens; that if a league was 
" made between H. 6. and another king, 
" it would not bind E. 4. and yet fuch 
" league is intended for the advantage of 
" the realm ; that an exemption granted 
" by H. 6. from being put upon juries 
" in afllfes, ^c. would now be void." 

Here Billing the chief juflice intcr- 
pofed and faid, I do not agree to this ; he 
added, " It pertains to every king hy rea- 
" fin ff his office to do jpjlice and grace, 
*' ji/Jlice ill executing the laivs, 8i.c. 
" and grace in granting pardon to fe- 
" Ions, and fuch legitimation as this is." 
Tclvcrton feemed at firft to think that 
the denization was void, not becaufe the 
regrefs of E. 4, avoided all mefne afts 
done by H. 6. but becaufe the aft of 
I E. 4. re fumed all liberties and fran- 
chifes, and denization being a lilcrty 
was therefore refumeci. 

The caufc was adjournd, during which 
time it was abated by the death o^ Snvi- 
renden one of the plaintiffs ; a new aP 
fife was brought by 'Bagot, and the fame 
matter was pleaded as before; the affile 
was taken, and the verdift was in favour 
of Begot ^ £.4. 5. the defendant's counfel 

moved 



Hi ft or i a Placitorum Coronas. 103 



io. a. (t\ a perfon that compafTed the death of H. 6. was 
attainted for that treafon in the time of the rightful king ; 
but had it been an rS: of hoftility in afTiftance of the right- 
ful heir of the crown (^), which afterwards obtained, this had 
not been treafon, but 6 converfo thofe that affifted the ufur* 
per, tho in a£lual poiTeffion of the crown, hare fuffcred as 
traitors, as appears by the Ifatute of i E. 4. (I), and as was done 
upon the aflillants of H. 6. after his temporary re-adeption 
of the crown in 10 £. 4. and /\c) H. 6. 

5. A king admitting by a6l of parh'ament his fon in con' 
fortium imperii, as was done by H 2. whereby there was rex 
pater and rex filius, only the father referved to himfeif the 
lige homage or alligeance of his fubjefts, yet the fon aftually 
adminiftred the kingdom j the father continued a king, and 

a trea- 



tooved in arrefl: of judgment, and ISrian 
(who was of cotinfel againft i^i'^^o/', and not 
one of the judges) repeated the former ob- 
jeflion, that fince E. 4.. was n poflefllon 
by remitter, as coufin and heir of king Ri- 
chardy the patent of denization by //. 6. 
who was but an ufurpcr and intruder was 
Void. 9£. 4. II. but the juftices faid, 
that they had conferd upon all points of 
this cafe with the juftices of the common 
pleas, and they were all of opinion, that 
thofe matters were not fufficient to arreft 
judgment; and accordingly judgment was 
given for Sagot 9 E. 4.. li. a. abridged 
in Sr. 'Patents ix. 'Denizen 5. Chartre 
de 'Pardon 22. Exetitption 4. yudgment 
4a. F.Ajfife 29. 'Denizen i. 

From this ftate of the cafe it appears, 
that the queftion was entirely upon the 
C()nftru6lion of an a6i of parliament^ and 
hot upon any maxims of common laiv ; 
and tho it was faid, that that a£t was an 
affirmance of the common law, yet that 
•was only the faying of cotnijel, and un- 
fupported by any book-cafe or record : 
fo that the diiHniflion here taken by our 
author between a rex de faBo and a rex 
de jure being no way warranted by the 
cnnftitution or common law of this king- 
dom, all that is here faid by him on that 
fuppofition muft fall to the ground. 

(;) This cafe is cited before by our 
author />. 61. but is fomcwhat differently 
related in Stoiv's y^/.'.'w/f, /. 4i!>. Seld. 
'/iUes of Honour^ caj>. 5. /. (J54. 



(*) But who fTiall take upon them to 
determine who that is V Our author 
therefore prudently adds, "ivhich after- 
ivards ol^taind, for this is the moft ef- 
fectual way of deciding quefiions of this 
nature ; but then by the fime rule, ;/ 
hcfjonld not ehtain^ fuch a(5t of hoftility 
had been treafon, for it cannot be ima- 
gined, that any prince in the aiSual pof- 
fion of the government will fuffer his 
own title to be difputed, nor indeed is i? 
fitting, that private fubjcdls fhould (ct 
themfelvcs up for judges in fuch an af- 
fair, whofe duty it is to pay a legal obe- 
dience to the powers, that are in faft fct 
over them ; for the po-ivers, that be, are 
ordaind of God. Rom. xiii. r. 

This ferves to fhew how idle the di- 
ftinflion is between a rex de jure and a 
rex de fa£lo, which is not only founded 
on a precarious bottom, but alio muft in 
fait prove a diftinftion without a diffe- 
rence, being equally fcrviceable to all 
fides and parties; and thus it was in re- 
gard of H. 6. and E- 4. who were both 
of them by turns declared by parliament 
to be riglitful kings and ufurpers. 

(t) This muft have been for afls be" 
fore E. 4. firft obtaind the crown, and 
therefore was wrong according to our 
author's own doctrine, becaufe, as he 
lays below, even the rightful heir before 
he has got poffeflion of the crown is not 
a king within the ftatute of ij -C, 31 



104 Hiji.oria Placitorum Coronce, 

a treafon committed againft lilm by his fon or any of his 
fiibje£ls was treafon within this aft ; and fo was the fon a king 
wdthin this a£l, as in reference to all but the father, a fubor* 
dinate king, that had the jura im^erii^ as the kingr of Scots 
\\ as after his homage done to king Edrpard I. and therefore 
compalling his death by any of his lubjefts had been high 
treafon within this adf, if it had been then made ; for it is 
miflaken in lord Cokes P.O. p. 7. that H. 2. reiigned his crown, 
for he continued ll:ill rex de faSio i^ de jure, as Horcden tells 
us. Vide fiipra cap. i o. 

Having thus Ihewn who is a king within this aft, we fliall 
the more eaiily lee who is not a king within this aft. 

1 . The right heir of the crown, during fuch tim_e as the 
ufurper is in plenary pofTefTion of it, and no pofleffion 
thereof in the heir, is not a king within this aft • fuch was 
the cafe of the houfe of Tork during the plenary poffelTion of 
the crown in H. 4. H". 5. H. 6. but if the right heir had once 
the pofTeiHon of the crown as king, tho an ufurper hath got* 
ten the poflellion thereof, yet the other continues his ffyle, 
title and claim thereunto, and afterwards re-obtains the full 
poffeilion thereof, a compaffing the death of the rightful heir 
during that interval, is a compaffing of the king's death within 
this aft, for he continued a king llill, qiiafi in pofTeffion of 
his kingdom \ this was the cafe of £. 4. in that fmall inter- 
val, wherein H. 6. re-obtaind the crown, and the cafe of £. 5. 
notwithifanding the tifurpation of his uncle JR. 3. 

2. If a king voluntarily refign, as fome in other countries 
have done, and this refignation admitted and ratified in par- 
liament, he is not afterwards a king within this aft (u) ; but 
we never had fuch an example in England, for that of R, 2. 
was a conftrained aft, touching which and the depolltion of 
£. 2. 1 ihall not fay farther, for they were afts of great vio- 
lence and oppreffion. 

3 Only 

(«") The fame reafon holds in the cafe cafe of king Jama II. who, tho not in 

of a king, who is deemed by parliament words, yet by afts and deeds equally 

to have abdicated, or by aftions fubver- expreffive had renounced holding the 

five of the confti* tion virtually to have crown upon the terms of the coniHtu- 

rcnounced the government j this was the tion. 



Hijloria Placitorum Corojtcc. 109 

— — - — . — • ■■■ — *~ — ■ " "■" ■ ■ " ■ ■ — 

Only thus much is certain, that altho E. 2. had a kind of 
pretended depofing, and his fon £. 3. took upon him the 
kino^ly name, and office, yet in the opinion of thofe times 
E. 2. continued, as to fome purpofes, his regal character, for 
in the parliament of 4 -E. 3. Mortimer^ Berisford, Gitrney, and 
others had judgment of high treaibn given againil them for 
the death of £. 2. after his depofition. 

Neither was this judgment grounded iimply upon that old 
opinion in Briton (x), that killing of the king's father was 
treafon ; for, tho in fome parts of that record, as in the 
judgment of the lords againft ^yl■timer^ the words are, 
Touchant le mort feigneiir Edward pere nofire feigneur le roy, 
qe ore efi, — count es, barons, i5f percs, come jugges dc parkmem, 
agarderent ^ adjuggerent le dit Roger, come tret or ^ enemy 
de roy ^ de realme, feuft treine iff pendu ; yet in other parts 
of that roll of parliament he is ftyled at the time of his murder 
feignior lige, and fometimes rex, as n. 6. llie lords make 
their proteftation, that they are not to judge any but their 
peers ; yet they declare, that they gave judgment upon fome, 
that were not their peers, in relpeft of the greatnels of their 
crimes ; et ce per enchefon de murder de jeigneur l/ge, iifc. and 
in the arraignment of Thomas lord Berkele for that offenie, 
the words of the record are, Qualiter fe relit acquietare de 
morte ipfius domini regis, who pleaded, ^wd ipfe de morte ipfus 
domini regis in nullo eft iyide culpabilis ; and the verdid:, as it 
was given in parliament 4 £. 3 • n.i6. and the record is, 
^u)d pnediflus Thomas in nullo efi culpabilis de morte pr^diBi 
domini r^gis pat r is domini regis nunc ; fo that the record ilyles 
him rex at the time ^ of his death, and yet every one ac- 
quainted with hiftory knows, that his fon was declared king, 
and took upon him the kingly office, and title upon the 
twenty-fifth, or, according to Waljingham, the twentieth oi Ja- 
nuary ; and E. 2. was not murdered till the twenty-firit of 
September following. 

I have been the longer in this inftance, tho it were before 
the making of the ftatute of 25 £. 3. when treaion was de- 
termined according to the common law, that it may appear, 

E e thac 

(r) Srir. caf. 22. Co. 'P. C.f.l, 



lo^ Hifloria Placitorum Coronal. 

that this jiid2;ment was not lingly upon this account, that he 
was father to king E. 3. but that notwithilanding the formal 
depolinj^ of him, and that pretended or extorted refignation 
of the crown mentiond by the hiftories of that age, yet they 
ttill thouglit the charaSier reglus remaind upon him, and the 
murder of him was no lels than high treaion, namely the 
kilhng of him, who was ftill a king, tho deprived of the ac- 
tual adminiftration of his kingdom. 

3. The hufband of a queen regent is not a king within 
this law, for the queen ftiil holds her fovereignty entirely, as 
if llie were fole: vide i Mar. cap. 2. JejJ. 3. and for the re- 
medy hereof there was a fpecial temporary a£l made enabl- 
ing and extending treafon as well to the compailmg of the 
death of king Fhilip of Spain hulband to queen Mary, as of 
the queen, and for the making of other acls againft the king, 
as againft the queen, within the compals of high treafon, du- 
ring the continuance of the marriage between them, i ^5'' 2 
Vhil ^ Mar. cap. i o. fo that it feems, tho tlie hulband of a 
queen regent be as near to him, as the wife of a king reg- 
nant, the ftatute of 2^ £. 3. declaring the compaffing of the 
death of the king's wife to be treaion, did not extend to the 
huihand of a queen regent, (jv) 

4. A prorex, viceroy, ciijlos regni, or jiifiitiarins Anglic, which 
import in fubftance the fame oihce, vi^. the king's lieutenant 
in his abience out of the kingdom, is not a king within this 
a£l (1^), tho his power be very great, and all commiilions, 
writs, and patents pais under his tefie 5 and the iame law is 
touching the lord lieutenant or jufiitiarius HiberniiC or his de- 
puty. Vide flatut. Hibernite. 

Rot. Pari. 3 I R 6. w. 3 8 ^5'' 3 9. Richard duke of Tork 
by the king's letters patent, and by confent of parliament 
was conftituted proteSior iff defenfor regni, iff eccleficn Anglica- 
nzc, iff confiUarius regis principalis, till the full age of the 
prince, or till difcharged of that employment by the king in 
parliam.ent, by the conient of the lords ipiritual and tempo- 
ral ; tho this were a high oHice, and exceeded much the 
povv'er of a prote61:or of the king during his m.inority, fucli 
2 as 

(y) Co. T. C. p. 6, J. (a) Co. 'P. C. /. 8. 



Hijloria PI act tor urn Corona. lo^ 

as were the earl of 'Pembroke to H. 3. and the duke of SomeV' 
fa to E. 6, yet this prote£lor was not a king within this 
ibtiite. 

III. 1 come to the third divilion, what Ihall be faid d com^ 
pajjlng or imagmini of the death of the king, queen, or 
prince. 

The words cetnpafs or imagine are of a great latitude. 

1 . They refer to the purpofe or defign of the mind or vvill'j 
tho the purpofe or defign take not effe£l:. 

2. Compaffing or imagining fingly of it felf is an internal 
ia£l, and without fomething to manifeft it could not pof* 
libly fall under any judicial cognizance, but of God alone ; 
and therefore this ftatute requires fuch an overt-aQ:, as mav 
render the compaffing or imagining capable of a trial and 
fentence by human judicatories. 

And yet we find that other laws, as well as oiirs, make 
compailing or confpiring the death of the prince to be crimefi 
lefe majefiatis, tho the effsdl be not attained. 

Ad legem Juliam majeflatis in Codice {a) in the law of Hono' 
rius and Arcadius, ^ifquis cum militibus, vel privatis, vel bar* 
haris fceleflam inierit faSiionem, vel faBionis ipjtiis fufceperit fa" 
cramentum vel dederit, de nece etiam virorum iUuflrium^ qui 
confAiis ^ confftoi'io noflro interfunt, fenatorum etiam, (nam ^ 
ipfi pars corporis mflri flint) vel cujufihet poflrcmh, qui nobis mi- 
litat, cogitaverity {cadem enim feveritate vohmtatem fceleris, qnJ. 
effeBum^ puniri jura voluerunt) ipfe quidem, utpote majefiatis 
reus, gladio feriatur, bonis ejus omnibus fifco noflro additis. 

A bare accidental hurt to the king's perlon, in doing a 
lawful a£l:, \vithout any defign or compailing of bodily harm 
to the king, feems not a compallmg of the king's death 
within this aif. 

Walter Tirrel by command of William Rufus ihot at a deer ; 
the arrow glanced from an oak, and killed the king ; Tirrel 
fled, but this being purely accidental, without intention of 
doing the king any harm, hath been held not to be a com- 
pailing of the king's death. Co. P. C. p. 6, Paris isf Boveden 
anno tilt. Willielmi fecundi. 



(.a) Lit. IX. tit. S. /. 5. /r. 



Calculating 



lo8 Hifioria Placitorum Cor on i^. 

Calculating of the king's nativity, or thereby or by witch- 
craft, iffc. feeking to know, and by exprefs words, writing, 
^c. publilhing and declaring how long the king Ihall live, or 
who Ihall fucceed him, or adviiedly or malicioujQy to that 
intent uttering any propliecies, feems not a compaffing of the 
king's death within the ftatute of 25 E. 3. (/>), but was made 
felony during the life of queen Eli:z^abeth by 2 3 Eli^. cap. 2. 
and before that was only punilhable by fine and ranlom. Co, 
P. C. p. 6. 

Compaffing the death of the king is high treafon (f), tho 
it be not effetled ; but becaufe the compaffing is only an a£l 
of the mind, and cannot of it felf be tried without fome 
overt-a£l:, to evidence it, fuch an overt-a£l is requilite to 
make fuch compaffing or imagination high treafon. De quo 
infra. 

IV. Therefore as to the overt-aSb in cafe of compaffing the 
death of the king, queen, or prince. 

I . I'ho the words in the ftatute of 2 5 E. 3 . and he prova- 
bly thereof attaint by open deed, &c. come after the claufe of 
levying of war, yet it refers to all the treaions bef ore-mention d, 
r/^. compalling the death of the king, queen, or prince. Co, 
P. C. 6. 12. and therefore what is faid here concerning the 
compaffing of the death of the king is applicable to queen 
and prince. 

And therefore in an indictment of treafon for compaffing 
the death of the king, queen, or prince, there ought to be 
fet down both the treafon itfelf, xv"^. ^lod proditorie compajfa- 
vit isf imaginatus fuit mortem ilf deflruBionem domini regis, 
^ ipfum dominum regem interficerc, and alio the overt-a6l, i^ 
ad illam nefandam iff proditoriam compajfationem i^ propofitum 
perimplend\ and then let down the particular overt-ail cer- 
tainly and lufficiently, without which the indictment is noC 
good. Co. P.C. p. 12. 

z 2. If 

(/•) Even before that ftatute, viz. Hil. only de felonia ££? malcficio, and were all 

18 P.. 2. Rot. 14. rex coram regc, there acquitted by the iury. 

was an inllance of feveral pcrfons charged (f) Infomuch that where the king is 

with endeavouring to compais the king's aftually murdered, it is the compaffing 

death by necromancy by making his i- his death, which is the treafon, and not 

inagc in wax, i^c. yet they were appeald thckilIing,whichisonlyanovcrt-acl.A'f/.8. 



Hijioria Placitonim Corona. 109 



2. If men confpire the death of the king and the man- 
ner, and thereupon provide weapons, powder, harnefs, poi- 
fon, or fend letters for the execution thereof; this is an overt- 
a£l within this ftatute. Co. P. C. p. 12. 

3. Tho the confpiracy be not immediately and dIre£Hy 
and exprefly the death of the king, but the confpiracy is of 
fomething, that in all probability mulf induce it, and the 
overt-a£l is of fuch a thing, as muft induce it ; this is an 
overt-a6l to prove the compairmg of the king's death, which 
will be better explaind by the inftances themfelves, and " 
therefore. 

4. If men confpire to imprifon the king by force and a l1:rong 
hand, 'till he hath yielded to certain demands, and for that 
purpofe gather company or write letters, this is an overt- 
acl to prove the compailing of the king's death, for it is in 
effe£l to defpoil him of his kingly government, and fo ad- 
judged by all the judges in the lord Cohhams cafe, i J^c. (d) and 
in the cafe of the earl of Ejfex, 4 3 Eli^. (e). Co. P. C. p. 12. 
But then there mull; be an overt-a6l to prove that confpiracy 
to reifrain the king, and then that overt-a£l to prove fuch a 
defign is an overt-a£l to prove the compailing the death of 
the king. 

But then this niufl be intended of a confpiracy forcibly to 
detain or imprifon the king ; and therefore, when in the 
time of J^. 2. in parliament a commiilion was fomew^hat 
hardly gotten from the king, which feemed to curb his pre- 
rogative too much, the anfwer of the judges to the general 
queffion, " ^lalem pocnam merentur illi-, qui compulerunt five 
" arElarunt regent ad conjentiendam diSi ftatiit' ordination* 
" iff commijfion ? ad quam qiujlionem iinanimiter refponde- 
" runt, quod funty ut proditores, merito punicndi, Rot. Pari. 11 
" R. 2. (/)." was too ralh and inconfi derate, and for which the 
judges themfelves were condemned as traitors, as bdbre is 
Ihewn (g) ; for compulerunt and arBaverunt may have a dou- 
ble conftruclion, either it may be intended of an actual force 
ufed upon the perfon of the king, as by reftraint, impriion- 

F f ment, 

id) State 7'riali, Vol. I. p. zo6. (f) State Trials, Vol. I,/, p. 

(e) State "trials. Vol. I. J>. 199. (g) ca£. ir. /'. 94. 



no Hijioria Placitorum Cor once. 



ment, or Injury to his perfon, to enforce his confent to that 
commlffion ; and then it had not difterd from the execrable 
treafon of the Spencers, who declared, tliat fmce the king 
could not be reformed by fuit of hw, it ought to be done 
per afpertecy for which they \\'ere banilhed by two a6ls of 
parliament (/;). vide 7 Co. Rep. fol. 11. in Calvin s cafe. 2. Or 
it might be intended, not of a perfonal compulfion upon the 
king, but by not granting fupplies, or great perfuaiion or 
importunity, and then it could not be treafon ; the latter 
whereof w^as the only compulfion or arclation, vdiich was 
ufed for the obtaining of that commiflion. 

And therefore the judges, that delivered that opinion, were 
inexculable in their decilion of treafon under fuch ambiguous 
and large expreflions of compulerunt ify arSiavcrunt ', and tho 
the parliament of i i i?. 2. was repeald by 21 J^. 2. yet that 
again was repeald i H. 4. cap. 3. 

5. A confpiring to depofe the king, and manifefling the 
fame by fome overt-a6l, is an overt-acl to prove the compaf- 
fmg of the death of the king within this adl: of 2 5£. 3. -vide 
1 Mar. B. Treafon 24. (i). Co. P.C. p. 12. 

It is true, that by the Ifatute of 21 R. 2. Ca. 3. it was 
enafted. That every man that compaffeth or purpofeth the death 
of the king, or to depofe him, or to render up his homage liege, 
or he that raifeth people, and rideth againfi the king to make war 
within his realm, and of that be duly attainted, and adjudged in 
parliament, /hall be adjudged as a traitor of high treafon againfi 
the crown ; and this a£l is particularly repeald by the Ibtute 
of I H. 4. cap. 10. as a great fnare upon the fubje6l; for it 
is recited, that by reafon thereof no man knew Imv he ought to 
behave himfelf to do,fpeak, or fay for doubt of fuch pains of treafon. 
4 But 

(h) One in the reign of Edivard II. " deprive the king, the queev, or their 

cMcd JExilmm Hiigonis le Spencer ; and " heirs apparent of the dignity, title, or 

the other in anno 1 Edward 111. cap.i. " na7He of their royal cftates." And 

0)Sroke makes this ^u,ere: "■ ^tare iE.6. cap.iz. bv which it was made 

" del deprw\ car home poet depriver, highly penal (for the third offenfe high 

^ 15 uncore wtende mill morte, £5? pur treafon) " to compafi or imagine hy open 

" cefl. catife nn jlatute fait entfait tern- " preaching, exprcfs ivordi or fayings, 

«« pore H. 8 & E. 6. Nota." The fla- " to depofe or deprive the king, his heirs, 

tutes here referd to are z6 H.%. cap. 15. " or fuccejfors, kings of this realm from 

by which It was made high treafon " to " his or their royal ejlate or titles to or 

" 'jeifu or defire hy ivords or -ivriting, " of the realm aforefaid. 
" or to imagitie^ invent, or attempt to 



Hifloria Placitonim Corona. ill 

But the true realon was not in regard of the ftjur points 
themleh^es, tor many of them were treafons within the fta- 
tute of 2 5 £. 3 . but that, wherein the acl of 2 1 jR. 2. varied from 
the a£l of 2 5 £. 3. were thefe : i . That the compaffing to levy 
war is made treafon by the ftatute of 21 JR.. 2. whereas the 
levying of war only was treafon by 25 £. 3. Again 2dly, 
Tho compaffing the death of the king was treafon within the 
letter of 25 £. 3. and compaffing to depoie him was an evi-; 
dence or overt-a£l of a compafling of the king's death within 
the meaning of the aft of 25 £. 3. yet both required an overt- 
a£l. The Ifatute of 2 1 J^. 2. makes the bare purpoiing, or com- 
paffing, treaion, without any overt-a£l ; and tho it retrain 
the judgment thereof to the parliament, yet it was too dan- 
gerous a law to put mens bare intentions upon the judgment 
even of parliament under fo great a penalty, w^ithout fome 
overt-acl to evidence it : this was one reafon of the repeal of 
the treafons declared by the ftatute of 21 .R. 2. but this was 
not all, for in that parliament of 2 i J^. 2. the refolutions of 
the judges to the queftions propounded by the king are entred 
at large, and received an approbation not only by the fuffrage 
of lome other judges and lerjeants, but by the ftatute made 
in the lame parliament, as appears at large by the ifatute of 
2 1 R. 2. cap. I 2. 

And therefore, wholly to remove the prejudice that might 
come to the king's fubjefts by thole ralh. and unwarrantable 
refolutions, the ftatute of i H. 4. Ca. i o. was madcj redu- 
cing trealons to the ftandard of 25 £. 3. and the entire 
parliament of 2 1 i^. 2. alio repeald as appears i H. 4, 
Ca. 3. 

6. Regularly words, unlefs they are committed to Writing, 
are not an overt-acl within this ftatute. Co. P. C. p. 1 4. (k) ; 
and the reafon given is, becaufe they are eafily fubjeit to be 

miftaken, 

(k) Vide Co. y. C.p. 38, 140. The paf- which cxprefly requires the proof of an 

fagcs quoted S. 'P. C. 2. I. from "Bra^lon overt-a£t, and confequently difallows the 

:ind "Briton^ only defcribe the form of evidence of bare words, for ivordi and 

the accuLition, but arc far from proving c.Eii are contra-diftingui/lied from each 

that words alone were, in the opinion of other. See Co. y. C. 14, in 7iiarginc. 

thofc writers, a fufficicnt evidence of The preamble of i iU^r/rf", c^r/. i./?^ i. 

treafon j but if they were fo at common makes it matter of complaint, that many 

law, yet it docs not follow, that they bad for ivords only Jiijf'crd JhaniefiU 

would be fo by the ftatute of 15 £. 3. •death. 



112 H'tftoria Placitonim Coroihv. 



miftaken, or mifapplied, or mifrepeated, or mitunderftood 
by the hearers. (/) 

And this appears by thofe feveral a£ls of parliament, 
which were temporary only, or made fome words of a high 
nature to be but felony. Co.P.C. cap. 4. p. 37. The ftatute 
of I H.-j. cap. 14. makes confpiring the king's death to be 
felony ; which it would not have done, if the bare confpiring 
without an o vert-aft had been treafon. 

26 H. 8. cap. I 3. malicious publilhing by exprefs writing 
or words, that the king were an heretic, fchifmatic, tyrant, 
infidel, or ufurper, enabled to be high treafon. (m) 

1 E. 6. cap. 1 2. If any perfon or perfons do affirm or fet 
forth by open preaching, exprefs words or fayings, that the 
king, his heirs or fucceffors, is not, or ought not to be fu- 
preme head of the church of England and Ireland ; or is not 
or ought not to be king of England., France and Ireland; or 
do compafs or imagine by open preaching, exprefs words or 
fayings to depofe or deprive the king, his heirs or fucceffors 
from his or their royal cftate or titles afbreiaid, or do openly 
publifli or fay by exprefs words or layings, that any other 
perfon or perfons, other than the king, his heirs or tuccell'ors, 
of right ought to be kings of this realm ; every fuch offen- 
der being convi£led for his firll: offenfe lliall forfeit his goods, 
and be imprifoned during the king's pleafure ; for the iecond 
offenfe fhall lofe his goods and the profits of his lands du- 
ring life, and fiiall fuft'er imprifonment during life j and the 
third offenfe is made high treafon. 

But if this be done by writing (w), printing, ovTrt-deed 
or aft, then every fuch offenfe is high treafon by the aft of 
25 £. 3. 

4 So 

(I) This is one but not the only rea- writing to cleprive the king of his dignity, 
fon, for another reafon was, becaufe men (n) This is faid by lord Cvke, 'P. C. 14. 

in a paffion or heat might flxy many and in SidJ2ey's cafe, State Tr. Fol. III. 

things, which they never defigned to do ; /. 7 3 5. it is fa.idfcrihere efi agere 5 qviBre 

the law therefore required, that in a cafe taincii, for if our author argues rightly, 

of fo nice a nature, where the very in- that words were nor treafon by 25 i?. 5. 

tention was fo highly penal, the reality becaufe there needed new a£ts to make 

of that intention fhould be made evident them fo in particular cafes afterwards, 

by the doing fome a£t in profecution the fame argument holds good with re- 

thcreof fpedl to writing, efpeclally if not pub- 

Qn) This fame ftatute makes it high li/hed ; for there were alfo new afls to 

treafon to wifh or defire by words of make ;that treafon. 



Hifloria PlacitoYuni CorouLe, 1 1 5 



So much of this a£l, as concerns ahy thing in derogation 
of the papal lupremacy, is repeald by the ftatute of i <y 2, 
Ph. iff M. cap. 8. And io much, as concerns trealon^ farther 
than it ll:ands fettled by 2 5 £. 3. is repeald by the ftatute of" 
I Mar. cap. i. Sejf. i. But the reft of this a£1:, that concerns 
only mildemeanors, ftands perpetual, as it feems. 

By I iff z P. i!f M. cap. 9. Prayers by exprefs words, that 
God would ftiorten the queen's days, or take her out of the 
way, or fuch like malicious prayer, amounting to the fame 
eftc6l, made treafon ; but if perfon penitent upon his ar- 
raignment, no judgm.ent to enlue^t*); the like proviiion is 
made during the queen's life by 2 3 Eli^. cap. 2 . 

I iff 1 P. iff M. cap. I o. Compailing to levy war againft 
the queen, or to depofe her or the heirs of her body, and 
malicioufly, advifedly and direftly uttering iuch con^pafting 
by open preaching, exprefs words or layings ; and aUo af- 
firming by preaching, exprefs words or layings, maliciouilyj 
advifedly and direifly, that the queen ought not to be queen 
of this realm, is puniJhable by lofs of goods, and chattels, 
whole profits of the offender's lands during life, and perpetual 
imprilonment ; and the fecond ofFenfe is made high treafon ; 
but if this be done by writing, printing or overt-a6l, then 
it is made high treafon. 

I £//^. cap. 5. the fame a£l: almoft verbatim for the fafety 
of queen Elizabeth and the heirs of her body. 

By 1 3 Elisi. cap. i . Compailing the death or bodily harm 
of the queen, or to deprive her of the imperial crown, or 
to levy war againft her ; and fuch compailing, malicioully, 
cxprelly or advifedly uttered or declared by printing, wri- 
ting, cyphering, fpeech, words or fayings ; and alio malici- 
ous, advifed and dire£l publilhing and declaring by exprefs 
words or fayings, that Ihe ought not to be queen, that 
ftie is an heretic, fchifmatic, tyrant, infidel or ulurper, is 
made high treafon in the principal, procurers and abettors, (p) 

G g 14 Eli^. 

(0) This laft cLiufe extended to fucK (/>) " The iridiflir.ents and attainders 
only, who had been guilty during that " of trcjfon hy force ot this itatute are 
fefTion of jnirliairent, for the aft had a " not more to be fuHnw'd ; becaufe the 
rctroli'Cd CO the beginning of the f-fliun. " Itarurc, whiib m de rh:m oood, is 

expired," 



114 Hi/ioria Placitorum Cor once. 



i^Eli^. caj). I. Compalling to take, or detain, or biiro 
the queen's caftles, and inch compalliny; declared by any ex- 
prefs words, fpeech, a£l, deed or writing, is made felony ; 
but the actual taking, or with-hloding, or burning them, is 
made treafon. 

13 Car. 2. cap. i. Compaffing the death of the king or 
any bodily harm tending to his wounding, impriioment or 
reftraint, or to depofe him, or to levy war againll him, or 
to llir foreiners with force to invade the kingdom, and fuch 
compaffing declared by printing, writing, preaching or ma- 
licious and advifed fpeaking, is made high treafon : publifli* 
ing or affirming the king to be an heretic or a papill:, or that 
he endeavours to bring in popery ; or inciting the people by 
writing, printing, preaching or other fpeaking to hatred of 
his majefty or the government, ditables to hold office, (q) 

By all which it feems, that regularly, i. words of them- 
felves cannot make high treafon ; 2. words of themfelves are 
not a fufficient overt-ail within the ftatute of 25 E. 5. to 
ferve an indiflment of compaffing the king's death. 

And with this agrees that notable cafe of Mr. Pyne in Croke^s 
reports, T. 4 Car. (r), the words of which are thefe, " Upon 
" confideration of the precedents of the flatutes of treafon it 
" was rejolved hy the f even judges there named^ and fo certified to 
*' his majefly, that the fpeaking of the words there mentiond,' tho 
*• they were as wicked as might he, were not treafon ; for they 
*' refolved, that, imlefs it were by fome particular fiatute, no 
*' words will be treajon ; for there is no treafon at this day, 
" (viz. 4 Car. i.) but by the fiatute of 25 E. 3. for imagining 
" the death of the king, &c. and the indi6iment mufi be framed 
5 " uport 

" expired." Co. 'P. C. J>. ic. in the mar- queens of this realm by authority of par- 
gin. 1 lament are not able to make laws of fuf- 
(y) No penalties are to beincurd by this ficient force and validity to bind the de- 
aft, unlefs the profecution be within fix fccnt of the crown : perfons who declare 
months next after the offenfe committed. • the fune by preaching or advifed fpcak- 
Sec alfo 'the 4. j'Juu. cap. 8. and 6 Ann. ing incur -j. pKcCMicizire ; but no profecu- 
cnp. 7. whereby it is made high treafon to tion to be for words fpoken, unlefs infor- 
declare by writing or printins», that the mation be given upon oath before a 
queen is not lawful or rightful queen, or jufticc of peace within three days after, 
that any other perfon hath right to the and the profccution be within thres 
crown othcrwife than according to the months after fuch information, 
'.'ifs tit fcttlcmcnt, or that the kings or (r) Cro.Cai', 1^5- 



Hi/tor i a Placitorum Corojut. 119 



upon one of the points in that flatiite ; and the n-ords fpoken 

there can be but evidence to dijcovcr the corrupt heart of him., 

that fpake them ; but of themfehes they are not treafon, nei- 
*' ther can any indiBment be framed upon them.'' 

Baker In his Chronicle, p. 229. tells us of t\\'o very hard 
judgments of treafon given in the time of E. 4. vi-:^. that of 
Walter Walker, dwelling at the fign of the crown in Cheapfide, 
who told his little child, if he would be quiet, he would 
make him heir of the crown : the other of Thomas Burdett (/), 
who having a white buck in his park, which in his abfence 
was killed by E. 4. hunting there, wilhed it horns and all 
in his belly, that counfelled the king to it ; whereas in truth 
none counfelled him to it, but he did it of himfelf: for thefe 
words both thefe were attaint of high treafon, and executed: 
tho Markham chief jufiice rather chole to leave his place, than 
aflent to this latter judgment. Fide indi£lment of treafon for 
treafonable words. P. 3 H 4. Rot. ^.i^ 12. Walton s cafe and 
Soiithes cafe. (?) 

Therefore tho this be regularly true, that words alone 
make not treafon or an overt-^aft, yet it hath thefe allays 
and exceptions. 

( I .) That words mgy expound an overt-a6l to make good 
an indictment of treafon of compaffing the king's death, 
which overt-aft poflibly of itfelf may be indifferent and un- 
applicable to fuch an intent ; and therefore In the indiilment 
ot treafon they may be joined with luch an overt-atl, to 
make the iame applicable and expoiitive of luch a compaf- 
ling, as may plainly appear by many of the precedents there 
cited, {u) 

(2.) That fome words, that are exprefly menacing the death 
or deltruftion of the king, are a fufficient overt-a£l to prove 

that 

(f) Sec Rapni\ hiflory /«^ anno 1478. during queen Elizaletlfs. life, by 25 Eliz. 

who mentions It in trie fame manner j cap. 2. Co. 'P. C. /. 6. 

hut it appears from the indidment mCro. (r) Louth's (not Soutb'si') and Waltoj/'s 

Car. 120. that he was indif^ed for caicu- cafe arc jTW;?. 5 //. 4. coram rege ret. 4. 

latin" the king's and prince's nativity, and 'P. 3 //. 4. coram rege rot. 12. in 

and declaring that they would not 1 ve SpcrJ^atick's cafe, who was alfo conviflcd 

long j and alio tor publifhing fedltious of treafon for fcandalou? Wordi. 

rh'imes and ballads, alrho this was not (?<) In 'Pyne'i Cife. 
treafon, ,iad wa^ therefore made felony 



11(5 Hijloria Placitorum Corona. 



that compafling of his deatJi, iVL q Car. B. R. Crohagm\ cafe 
in Crake (x\ who being an Irijh prlelt, 7 C^r. i. lit Lisbon in Pj/- 
tugal ufed thefe words, " / ml! kill the king (innuendo domi- 
*' num Carolum regeni Anglu) if I may come unto himj' and 
in Aug. 9 Caroli he came into England for the lame piir- 
pofe (y). I'his was proved upon his trial by two witnelFes, 
and for that his traitroiis intent and the imacrination oi his 
heart was declared bv thefe words, it was held hi^h treafon bv 
the coiirfe of the common law, and within the exprefs words 
of the ftatute of 2 5 £. 3 . and accordingly he was convi6led, 
and had judgment of hiyji treafon ; yet it is obfervable, that 
there was lomewhat of an overt-a£l: joined with it, namely his 
coming into England, whereby it leems to be within the for- 
mer conlideration, namely, tho the coming into England was 
an a6l indift'erent in itfelf, as to the point of treafon • yet ic 
being laid in the indi£lment, that he came to that purpofe, 
and that in a great meaf ure expounded to be fo by his mina- 
tory .words, the words coupled with the a6l of coming over 
make his coming over to be probably for that purpofe, and 
accordingly applicable to that end. 

To fay that the king is a baffard, or that he hath no title 
to the crown, is held high treafon. M- 5 Jac. Telvert. 197. 
Blanchfloiver^ cafe, Cs^ ibidem Hill. 8 Jac. Berisford's cafe. (^ 

P. I 3 Jac. B. R. (a) 'John Owen alias Collins was indicted of 

tr-eafon, for that he, intending the king's death, falfb isf ma- 

5 liticfi 

(x) Cro. Car. 551. ford's cafe <1ifferd from the other judges j 

Cv) This cafe does by no means prove, fo that none of thefe cafes prove, that 

that words alone are a furficient overt-ad}, bare wor-ds are an overt-a£l of treafon 

for here were.not only threatning words, within 25 Ed. 5. indeed where any one 

but alfo an a£l done in order to put that not only utters words declaring his own 

threatning in execution ; fo that, as our thoughts, but endeavours by promifes of 

author admits, it comes more properly reward or other arguments to perfuade 

under the former head ; the refolution another to kill the king, or the like, 

therefore in Kclyng 1 3. that words are this has been coniirued an overt a6l of 

an overt act, which is founded on this treafou, becaufe here is fomething be- 

cafe, mud fall to the ground. fides the words, here is an attempt to 

(aj This cafe is likewife reported Cro, drasv' another into the delign, and is as 

'Jac. 27 ^ and i 'Bitlf. 147. but both the much an overtail: as an agreement or a 

cafe? quoted here by our author were ac- confultation how to c-fFtft it. Lord Sto.f- 

tions for fcandalous words, and the lingle jord's ca!e, State T'r. Vol. HI. p. 408. 

point in judgment before the court was, Chariicc\C%cx{c, State^tr.Vol.W ■ }, "^ix. 

whether the words were a(5tionahlc, and e- i Salk. 651. 
venASto th;u2V/L'i?r/c«andC/C'/it'ini't'r(/- {a) i RoU. Rep. 185. 



Hifloria Placitorum Cor once > 117 

1 

litio^e fpake thefe words of the king : The king being excom- 
mimicate by the pope may be larvfully depojed and killed by any 
whatjoever, which killing is not murder ; and being demanded 
by Henry White, how he durft utter inch a bloody and fear- 
ful concluiion, Orpen anfwered, The matter is not jo heinous^ as 
you fuppofe, for the king being the lefs is concluded by the pope 
being the greater ; and it is all one as a malefaBor being con- 
viSied by a temporal judge is delivered to execution, fo the king 
being conviBed by the pope may be lawfully ^aughtered by any 
Tphatfoever, for this is the execution of the Jupreme fentence of 
the pope, as the other is the execution of the law : to this in- 
.diclment he pleaded not guilty ; and it was ruled to be high 
treafon by Coke chief juftice and all the court ; and being 
found guilty he had judgment to be hanged, drawn and quar- 
tered (b). And here it was fald by the king's attorney (c) 
upon the evidence, and not denied by the court, i . that the fta- 
tute of 2 5 £. 3. £S to comparing the king's death was but an 
affirmance of the common law. 2. That it is treafon by the 
laws of all nations • and therefore an embaffiidor for compai- 
fing the king's death iliall be executed here for treafon ; but 
for other treafons lliall be remitted into his own country 
to be tried. 3 . That words of this nature ipoken de futura 
have been adjudged high treafon prelently ; and therefore it 
was there faid to be adjudged in the time of H. 8. in 
the cafe of the duke of Bucks, that thefe words were high 
treafon, Jf the king JJjould arrefl him of high treafon, he would 
/lab him ; (vide cafe de duke Bucks, i 3 ff. 8. 11. b. 11. a. where 
there are other words alfo {d) ; ) and in the cafe of another, 
Jf Y{.?i. will not take again queen Catharine as his wife, he fjaR 

H h not 

{h) Thefe words, tho very wiflced and zeal, without intending or imagining ths 

of a mifchievous tendency, and there- death of the king. 

fore an high mifdemeanor, yet unlefs (c) ^acon. 

accompanied with fome circumflances to {,d) There was al{b fomewhat of an 

Jl\ow, that they were made ufe of in or- overtacl joined with the words j for be- 

Acx to perfuade fomebody to kill the ing told by a monk, that he fliould be 

king, cannot according to the refolution king, and commanded to obtain the 

in ^Pyne's cafe amount to an overt-ai5l of good will of the commonalty, he was 

high treafon, for they are not any a£t at accufed of giving certain robes for that 

all, and bcfides might be faid by a bigot- intent : this duke's cafe was counted hard, 

ted papilt, in the heighth of his ignorant and his fate is lamented by the reporter. 



1 8 Hi ft or i a Placitoriim Corona, 



not be king{e) ; and in the cafe of Stanley, Temp. H. 7. That 
if Pierce War beck were the Jon of E. 4. he would take part 
with him again/} H. 7. (/J 

And note, that king James had been long excommunicate 
by the pope, and that^every Maimday Thitrjday the pope ex- 
communicates all Calvinifts, isfc, and all that have withdrawn 
their obedience from the pope : Owen was executed accord- 
inolv. Fide la. (g) the whole judgment and particulars and 
conlequence thereof. 

7. Thofe words, which being fpoken \vill not make an 
overt-a£l to make good an indictment of compaffing the king's 
death ; yet, if they are reduced into writing by the delin- 
quent either letters or books, and publilhed (h), will make an 0* 
vert-aft in the writer to make good fuch an indictment, if the 
matters contained in them import fuch a compajfing (i). Co. 

P. C. p. 1 4. 

Inftances of this kind are many in 4 Car. Croke, uhi fu- 
pra : but 1 {hall inttance particularly only in Williams's cafe. 



P. 1 7 Jac. B. R. (A) 

(e) This was the cafc of ElizaUth 
'Barton, the holy maid of Ke7it : the 
words, as related by lord 'BacOn in his 
hiftory of Hcury VII. /. 134. were 
thefc; " "That if king Henry the eighth 
" did not take Catharine his ivife again, 
♦' he poiild he deprived of his cro-nm, 
" and die the death of a dog" She and 
her accomplices were attainted of trea- 
ion by a particular afl of parliament, 
V'Z. zs U-'^- cap.iz. upon which lord 
Coke obferves Co. 'P. C. 14. that they 
could not have been attainted of treafon 
within 15 E. 3. 

(/) Lord Sacon in his hiftory of 
Henry VII. p. 154. reports, that the cri- 
minal words, for which Stanley was ac- 
cufed, were thefe j " That if he ivas 
" fnre, that the voting man (Perk in War- 
" beck) ivere ~king Edward'i fen, he 
" \vould never hear arms againft him. ' 
Upon which the hiftorian makes this 
obfervation ; " This cafe ^eems fome-zvhat 
*' an hard cafe, both in refpeEl of the 
*' conditiona}, and in refpeEl of the other 

" "jcords, &c." mn (fays he) " Some 

" rz'r iters do put this out of doubt 5 for 
" they fay, that Stanley did exprefly pro- 
" mifc to aid Vi^xk'wi, andfent him fime 
" help of tnnfiire.'" And it appears by 



WiU 

the record oi Stanley'' s indiflment quoted 
in Cro. Car. p. 115. that he was accufcd 
not only of words, but of an exprefs 
agreement and confpiracy to bring in 
Teter Warlcck and make him king. 
2'Jote, That the lord 'Bacon, whofe hiflory 
is here quoted, is the attorney general 
mentioned in Oiven's cafe. 

(g) I Rol. Rep. 185. 

(/>) In 1'cacham\ cafe quoted in Cro. 
Car. 125. an unpubliflaed writing was 
admitted in evidence as an overt-afl of 
treafon : the like in the cafe of Col. Sid- 
ney, State Tr. Vol. III. /. 71c. but both 
thole cafes were unwarrantable ; as to 
the firft it docs not appear there was 
any judgment, for the book fays it was 
againft the opinion of many of the 
judges, and the latter was refolved at a 
time of day, when the refolution of the 
judges in fuch an affair ought to be bur lit- 
tle regarded ; that judgment was accord- 
ingly reverfed by afl of parliament i?KCf^j^/. 

(i) As was 7^:e>vj s cafe, Kelyng zi. 
for the report fays, that the people were 
exhorted by that book to put the king 
to death. State Tr. Vol. II. ^. 524. 

{k) This cafe (which feems a very hard 
one) is reported 2 RoL Rep. 88. and is 
quoted Cru. Car. 125. 



Hi (lor i a Placitomm Coronal. iip 



Williams wrote a book, intltled Balaams Jfs (/), in which 
there were many things reproachful and dangerous to the king^ 
and among others, that the king Jhoidd did anno domini 1 5 2 i . 
and that the realm, flyould be defirqyed, becauje it was cinti" 
thrifiian and the abomination of defolation : this book he 
incloted and fealed up in a box, and fent it to the king (m) ; 
and for this he was indi6led and attainted and executed for 
high treafon, vide Co. P. C. 1 4. concerning words, ^^^here it is 
faid thus ; " But if the fame be fet down in writing by the de* 
*' Unquent himfelf this is a fufficient overt-aSl tpithin this fla- 
*' tute^' And the fmie law it is, if it be let down in wri- 
ting by any other by his command or dire£lion. 

8. If there be an alTembling together to conlider how 
they may kill the king, this aflembiing is an overt*a6l to 
make good an indi£l;ment of compafling the king's death. 
This was Ardens, cafe (n\ i6 Eli^. and accordingly it was ru* 
led Decern. 1 4 Caroli at Newgate in the cafe of Tonge and o- 
ther confederates. {0) 

By my lord Cokes opinion Co. P. C. 14. " A confpiracy to 
" levy war is no treafon by the ftatute of 2 5 £. 3 . till war 
*' be levied ; " and there have been feveral particular and 
temporary a£ls, that make the confpiracy to levy war treafon, as 
well as compafling the king's death. And therefore he faith, 
That it hath been refolved 3 5 Eli^. that confpiracy to \t\y 
w^r againft the king fliall not be faid an o\^ert-acT:, to 
" ferve an indictment for the compafhng of the king's death, 
*' becaiife the claufes concerning compafling of the king's 
*' death, and tliat of levying war, are diffin£l claules, and 
*' declare diilinft treafons j and therefore the latter Ihall not 
*' be an overt-a£l: to ferve the former, becaufe this were to 
*' confound feveral claffes or membra, dividcntia of high 
*' treafon." 

And 

(/) He wrote two books, oiie called whicii he was inilifleJ j but this cafe 

!Bdlaitm's J[fi, sind the other Spectdiira deRroys its own authority by going too 

Regale. far, for they agreed it to be a dear 

(/V2) In this cafe was firft broached that point, that bare words might amount to 

famous doitrine, fcnl/e)*e eft dgcrc. The treafon ; ftrange conftruftion of the fta- 

court went fo far as to declare it to be tute of 2 5 Ei^. 3. 
their opinion, that if this book had been (n) Jiiderfou, pars I. /. 104.." 
found in his lludy, it would have been (0) Kclyng 17. State Zr. 'l^oL II. /. 

a futficient evidence of the treafon, for 474. 



u 



120 Hijloria Placitariim Corona. 

And yet in the fame book^. i 2. the cafe of the earls ofEfex 
and Southampton 4 3 Eli-^i. are cited, which feem to contradi6l that 
opinion : the words are, " That the faid earls intended to go 
" to the court where the queen rpasy and to have taken her into 
" their power, and to have removed divers of her council, and 
" for that end did ajfemble a multitude of people ; this being 
*' raifed to the end aforefaid was a fuffcient overt-a6b for com- 
*' pajfing the death of the queen ; " which ieems to contradiil 
what is elfewhere by him laid, (p) 

And he that iTiall read the proceeding againll: the duke of 
No? folk fet forth at large by Camden Eliii^. fub anno 1572. 
p. 170. isf fequentibus, will find, that not only the confpiring 
with a forein prince to invade this kingdom, and fignifying 
it to him by letters, is an overt-a61: to maintain an indi£lment 
for compailing the queen's death : but that the duke's pur- 
pofe to marry the queen of Scotland udio had formerly laid 
claim to the crown of England, and fignifying it by letters, 
and all this done without the confent of the queen of Eng- 
land, was held an overt-a£l: to depofe the queen of Eng- 
land, and to compafs her death ; for if the queen of Scots 
claimed the crown of England, he, that married her, mull 
be prefumed to claim it alio in her right, which was not con- 
liftent with the fafety of the queen of England, and her title 
to the crown ; and altho this extending of treafon (as to this 
point of marriage) by illation and conlequence was hard (q) ; 
yet the duke was convi£l: and attaint of treafon generally upon 
this indictment, tho there are likewife iome other crimes 
charged in the indi£lment. 

I will therefore fet down the refolution of the judges 
1 6(5 3 . touching thole, that were alTembled in Torkflnre at Far- 
ley Wood {r), divers of whom were after indifted, and at- 
tainted of high treafon for compaffing the death of the king ; 
2 the 

( p) I do not fee how this contra- (q^ According to lord Coke's under- 
di£ts what is fad by lord Coke f. 14. fianding of the ftatute of 15 Ed-x. 3. 
for here was an exprefs defign to put the it was not only hard but illegal, for by 
fer^on of the queen under a force ■■, nay that fiatute no one ought to be con- 
it had proceeded farther than a defign, vifted by inferences or illations. Co.'P.C. 
for there was a multitude a£lually affem- ^. 12. 
bled for that end. State I'r. FoL I. /. (r) Kelyug 19. 



Hifioria Placitoriim Corona. ill 

the refol'dtion was in thefe words, as I have tranfcribed it 
verbatim out of a MS. of my lord keeper Bridgman then 
chief JLiftice cf the C. B. wlio was preient at the conference, 
Fii'it agree per les juflices fur conference touchant ceux, queux 
nffemble eux in Farley Wood in Yorklhire 1^153, que fur 
indi^ment pur compaffing mort le roy overt fait poet eflre layd 
in confuhing a levyer guerre centre lui (que efl overt-acl de foy 
mefme) (if actual affembling, ^ levying guerre: Et ou Co. 
P. C. 1 4. dit, " j% confpiracy a levyer guerre nefl treafon^ tan- 
" que foit levyed, iff pur ceo nefl overt-aft, ou manifefl proofc 
" de compaffing mort le roy, car le parols font., {de ceo) i. e. 
'' compalfing mort le roy^ iff ceo foit d corifounder le fever al 
" clajfes, ou membra divldentia : " Uncor le ley efl contra ', isf 
iffint fuit rcfolve per touts les juflices iff councel de roy in le 
cafe des regicides, Venner, Tonge isf Vane, (/), qe fur in- 
diElment de compaffing de mort le roy^ confulting a levyer guer-" 
rcj ou afiual ajfembling de guerre fueront evidence., iff overt 
faits provant compajfing mort le roy ; iff ceo appeirt in Co. 
P. C. 1 4. " Si fubjeB confpire ove forein prince de invader le 
" realm, iff prepare pur ceo per overt fait, ceo efl fufficient 
" overt-a^ pur mort le roy : Et ibidem p. l 2. '■'■ Le count de 
" Effex i^ South' intended daler al court, isf daver prife la 
" reigne en lour power, isf remover afcun de councel, isf a ceo 
*' fine ajfcmbled multitude de people ; this being railed for the 
" end aforefaid fuit fufficient overt-aB pur compaffing de mort 
'* le roy,'' queux 2 cafes font exprejfe contrary al primer. 

Fuit nuxi agree, que fi un overt-a6t foit lay en le endite^ 
ment, iff le proof efl dun autre overt-a5i de mefme le kinde, 
ou fpecies de treafon, ceo efl affets bone evidence. 

I miii-fc confefs, that 1 could never sfient to this laft part 
of the refolution, tho I know it was fo pra£lifed in crimi- 
nal cafes in the ftar-chamber, for I have always thought 

1. That the overt-a£l is an eflential part of the indi^lment. 

2. As it muft be laid, fo it muft be proved f?) ; for other- 
wife, if another a(£l than what is. laid lliould be fufficient, 

I i the 

. (f) Kelyng jc, 21. no evidence fhall be given of sny overt- 

(t) Kclyiig S. is co7itrc!, however this ai>, which is not exprefly laid m :he m- 

point is put out of all doubt by 7 W. 3. diriment. 
caj>. 5. <). 8. whercbyit is proviJcd, th-t 



Ill Hi (lor i a Pladtonmi Cor on d^. 



the prifoner would never be provided to make his deienie, 
7. That more overt-a6ls than one niav he laid in an indiil- 
ment, and then the proof of any of th.em 1o laid, being in 
lav/ fufficient overt-afts, maintains the indiftment. 4. That 
if any over-a£l be fufficiently laid in the indictment, and 
proved, any other overt-adls may be s^iven in evidence to 
asi^ravate the crime and render it more probable. 

This refolucion, as to the point of compulhng the king's 
death, being the latter and of great weight, and more than 
twice pra^liied («), ought to out-weigh the opinion before 
cited, and with this agrees the reiolution of i 3 Eli-Zc Tyyer 
2C)^.b. in Dr. Storie's cafe, who confpired with a forein prince 
to invade this realm ; it was adjudged an overt-a61: to make 
good an indi£l:ment of compaffing the queen's death (x). Vide 
Anderfons Reports Placho 154. which was the cafe of Arden 
and Somer-ville and others, who confpired the death of queen 
Elizabeth, refolved by all the juftices, that a meeting together 
of thel'e accomplices to confnlt touching the manner of 
€ffe£ling it was an overt-F.ft to prove it, as well as SomeV' 
ijilles buying of a dagger aclually to have executed it. Andey 
Jons Rep. Pars!, p. 104. 

And yet this difference feems to me agreeable to law, and 
reconciles in fome meafure both refolutions. 

An affembly to levy war againfl the king, either to depofe 

or reflrain, or enforce him to any afl:, or to come to his 

prefence to remove his counfellors or miniflers, or to fight 

ijgaini'l: the king's Heutenant or military commiflionate oifi- 

5 cers, 

(?/) But yet it t^ocs by no means follow emplis. Co.T.C. d. in margnie. A bare 

from thence, that this refolution is right conipiracy to levy war is certainly not 

as to this point any more than as to the treafon, and was fo adjudged in the cafe 

other refolved at the fame time, which of Sir John Friend ; but if it appear 

yet our author thinks to be wrong 5 were upon evidence, that the defign was to kill 

h a point of common law the repeated the king, or depofe him or imprifon him, 

relolutions of the judges is the only way or put any force on him, and the levying 

to know what the law is, but where the war was only the way or method made 

quellion arifes upon an aft of parliament, ufe of to effeft that dcfign, then it will 

that is to be the rule for courts of jallice be an overt-a6l of compalling the death 

to goby, of which they are to judge accord- of the king; and this is the diftinfticn 

ing to their own reafon and underflanding, taken by lord chief jullicc//&// in Slryobn 

and arc not in fuch cafe tied down by for- Frietid's cafe, Sld:e 'Tr. I'd IV. /. iJij, 

met determinations any farther than the 614. 
reafons or arguments thereof appear con- \x) See 2 l^eu:. 515. 
cluf.vc, iov jiirliceydi.f/t eji legilm nou £X- 



Hi ft or i a Placitorum Corona, 123 

cers, is an overr-!icl: proving the compaflmg of the deatli of 
the king ; for fu-Ji a war is diredled againit the very perfon 
of the king, and lie, that deiigns to fight againft the kiny;, 
cannot but know at leaft it muft ha.zard his life ; futh was 
the cafe of the carl of Ejfex and fome others. 

But if it be a levying of a war againll: the king merely 
by interpretation and conftru£lion of law, as that of Buv" 
ton (y\ and others to pull down all encloiures, and that of 
the apprentices in London lately, to pull down all ba\x'dv-hoii- 
fes (^), de quibiis infra^ this ieems not to be an evidence of" 
an overt-a£l to prove compaflmg the king's death, when it is 
fo dikloled upon the proof, or if it be lo particularly laid 
in the indi£lment ; tho prima facie if it be barely laid as a 
levying war againff the king in the indi6lment, it is a good 
overt-a^l to ierve an indi6fment of compailing the king's 
death, till upon evidence it lliall be difclofed to be only to 
the purpofe aforelaid, and fo only an interpretative or con- 
ilrudlive levying of war. And Burtons cafe 3 9 Eli^. feems 
to intimate as much, becaufe they took him to be indi6lable 
only upon the flatute of 1 3 E//^. cap. 1 . for confpiring to levy 
war againft the queen, whereas if this had been an overt-a6t 
to prove the compaffing of the death of the king, the fa6l 
had been treafon within z^ E. 3. as furely it would have 
been, if he had confpired to have railed a war dire^lly a- 
gainfl the king or his forces, and afTembled people for that 
purpofe, tho no aftual war had been caufed by him. 

But fuch a levying of war may in procefs of time rifs 
into a dired: war againfl the king ; as if the king fend his 
forces to fupprefs them, and they fight the king's forces ; and 
then it may be an overt-ail to prove the compailing of the 
kind's death. 

And thus far of compaffing the king's death. 

Something I fhall add touching the compaffing of the 
death of the queen, or prince, wherein I ffiall firff coniidcr, 
what Ihall be laid the queen, or their eldefi fon within this 
adl:. 2. \Miat a compailing of their death. 

I. A 

fjj) Cc. T. C. 10. (s) Kel. 70. 



124 Hijloria P lac it or urn Corona. 



1. A qneen dowager, namely the queen after the death 
of her hufband, is not a queen within this a£l:, for tho flie 
bear the title of queen, and hath many prerogatives anfwer- 
ing the dignity of her perlon, yet llie is not {his queen) or, 
US the other parts of the -idc ex pre Is it, {his companion) it 
mull be the queen confort, the king's wife, and during the 
marriage between them. 

2. The queen divorced from the king a vinculo matrimonii^ 
as for caufe of confanguinity, is not a queen within this ail:, 
tho the king be living : this was the cafe of queen Katharine^ 
who was firft married to prince Arthur, and by him, as was 
faid, carnally known, and after his death married to prince 
Henry, (afterward king Henry VIII.) by whom llie had ifllie 
Mary, (afterward queen of England) and afterwards after 
twenty years marriage was divorced caufa affinitatis, wliich 
divorce was confirmed in the parliament 2 5 i^. 8. cap. iz. 

This was alfo the cafe of his fecond wife queen Anne, who 
was alfo divorced a vinculo, and that divorce confirmed by 
the ftatute of 28 //. 2. cap. 7. which neverthelefs was again 
repeald in part .by the ftatute of 3 5 H. 8. cap. i. and in ef^ 
fe6l wholly by the ftatute of i £//^. cap. 3. and yet there is 
one claufe obfervable in the ail of 28 //. 8. that treafons 
committed againft queen Anne, or the lady Elizabeth her 
daughter, mefne between the marriage and that divorce 
were punifliable, altho the divorce made a nullity of the 
marriage ; and therefore there is a fpecial claufe to pardon all 
fuch treafons, fo that the relation of the divorce, and fepara- 
tion to diflblve the marriage ah initio, was not thought luffi- 
cient to difcharge thofe treafons, without a fpecial pardon 
difcharging the treafons committed againft them. 

But we need not put the cafe of a divorce a menfi ^ thoro 
caufa adulterii, becaufe adultety by the king's wife is high 
treafon in her, and fo the cafe of a divorce cannot well 
come in queftion, for ftie muft be executed for treafon. P. 28 
H. 8. Spilmans Rep. {a). 33 H. 8. cap. 2 1 . {b). Co. P. C. p. 9. 

5 0« 

(<?) In the cafe of queen A'nie Zclen. {I) In the cafe of c^ueen Katharine 
IL'x.^.rd. ' 



Hi ft or i a Placitorum Cor on ^e. 129 



11. Ou lour fit^ eigne iff be!}'. 

At common law compaffing the death of any of the 
king's children, and declaring it by overt-a£l: was taken to be 
treafon, Briton, ubi fupra ; but by this aft it is reftrained to 
the eldefl fon and heir. 

I . The el deft fon and heir extends not td a collateral heir, 
tho declared heir apparent to the ci'ow'n, unlets there be a 
fpeclal provilion for that purpofe by a£l of parliament : thus 
Roger Mortimer 1 1 R. 2. Richard duke of York 39 H. (5. John 
de la Poole tempore R. 3. and Henry marquis of Exeter tem- 
pore H. 8. were declared heirs apparent of the cfown ; yet 
compaffing any of their deaths in the king's life-time was not 
treafon within this aft. Co. P.C. 8, 9. 

And therefore in that great agreement made in the parlia- 
ment of 3 9 H 6. when Richard duke of Tork made his claim 
to the crowUj and it was enafted, that H. 6. Ihould hold the 
crown during his life, and that Richard duke of Tork iliould 
fucceed him, Rot. Pari, t^c) H. 6. n. 14. it is fpecially enaft- 
ed, that if any perfon do compafs or imagine the death of 
the duke, and thereof be attaint by open aft, it lliall be 
high treafon ; which had not been io, unlefs it had been fpe- 
cially enafted. 

2. The king takes wife, and by her hath iiTue two fons, 
the eldeft dies, the wife dies, he takes a fecond wife ; this 
fecond fon, tho he were once not eldeft, and tho he be not 
hur eigne fifz^j but only the king's fon, is eldeft fon withirx 
this ftatute. 

3. King Edward III. had iiTue the Black Prince, who had 
ilTue Richard of Burdeaux afterwards king Richard II. his el-* 
deft grandchild, tho he were not, in the life of his father the 
Black Prince, the king's eldeft fon within this ftatute, yet his 
father being dead in the life of Edward III. it rriay be very 
coniiderable whether prince Richard be the king's eldeft fon 
within this ftatute, and the compaffing of his death be high 
treafon ; for he is heir apparent of the crown, and his heir- 
lliip cannot be devefted by any after-born child. 

" The duchy of Cornwall was fettled upon the Black Prince 
tsf.ipjius ^ lureiumjiiorimi regmi Anglix fliis primogenitisy 
•• . K k „ alrho 



" ' — - — tmt 

ll6 Hijioria Placitoriim Cororta, 

I ^ ,, 

akho the king's eldeft daughter be not duchefs of Cornwall, 
hecaufe not jilius, yet, (contrary to the opinion delivered in 
the prince's cafe 2> Co. Rep. 30. 4.) H. 8. after the death of his> 
hrother prince Arthur, and oiir late kin^ Charles, after the 
death of his eldeft brother prince Henry, were dukes of Corn^ 
ivcdl in the life of their fathers : the latter appears expreflv 
by the flatute of 2 i Jac. cap. 2 9. \A'herein it is fo declared by 
judgment of parliament ; and Richard of Burdeaux w^as aUo 
duke of Cormvall after the death of his father the Black Prince, 
and comes in the catalogue of dukes of Cornwall in the col- 
ledlion of Vincent and Mills of the nobilitv of Endand : and 
had the revenues thereunto belonging, as appears undeniably. 
Rot. Pari. 51 £. 3. «. 65. 

But it feems it was not by virtue of that limitation in the 
grant to the Black Prince, but by a new fpecial creation ; for 
Rut. Pari 50 £. 3. «. 50. the commons petition, that he might 
be created duke of Cornwall, earl of Chefter, and prince of 
Wales ', the king declined the doing of it at their requeft, as 
being a thing proper only for the king to do his pleajfure 
therein : the truth is, the king had done it before the requeft 
made, vi-z^ Rot. Cart. 47, 48 ^ 49 £. 3. «. 10. the words of 
the charter are, " Ex confMo ilf confenfu pr^latorum, ductm, 
*' comitum ilf baronum, ipjum Ricardum principem Wallia;, du' 
" cem Cornubise, i^ cornitcm Ceil:ricc fecimiis tf creavimus\ 
and grants him the poffeilions thereunto belonging, which he 
accordingly enjoyed: vide Rot. Pari. 51 £. 3. n. ^. and ob-» 
ferve a certain effate is limited by the patent of creation for 
life ; or otherwife, it feems, it was thought fit to leave it to 
the conftru£lion of law, whether he had it purely by new 
creation, or by the conftru£lion of the charter i i £. 2. to 
the Black Prince, 

This cafe therefore touching confpiring the death of fuch 
a prince, as Richard of Burdeaux then was, tho it may be 
probable to be treafon within the intent of this aft, is fitteft 
to be firft decided by parliament according to the caution 
lifed in the ftatute of 2 5 £. 3. 

3. If the king of England hath two daughters only, and 
no ion, the eldeif daughter is not within the words or intent 

3. of 



Hifioria Plachorum Cor once. 127 

of the kings eldefl Jon within this claiife, for a fon may be af- 
ter bom ; but feveral ftatutes have made temporary proviiions 
in this cafe : ride the ftiitutes of 2 5 H. 2. ai^. 22. z2> H.2, 
cap. 7. , .. 

It is true the implication of Co. P. C. p. 9. where it is faid, 
" if the heir apparent be coU.neral heir apparent y he is not 
" within this fidiiite, until it be declared hy parliament^'' implies 
that the lineal heir, male or female, is within this ilatiite. 

But the implication of the ftatute itlelf is againft it, be- 
caufe this ait almoft in the fame breath takes notice of the 
king's elJeft daughter upon another rank of treafon, namely 
defiling her ; and it Is not fafe to extend this a6l by con- 
ftruftion. 

The fecond dauditer, living: the firft, is certainly not w^ithiil 
this law, becaufe not immediately inheritable to the crown. 

Yet by the ftatute of 25 H 8. cap. 22. which was but 
temporary, provilion is made, that ii any thing ihould be 
written or done to the peril, flander or diflierifon of any 
of the Iffi-ics and heirs between him and queen Annej the 
fame Ihould be treafon. 

Thus far touching the perfons of the queen or prince. 
Now what fhall be faid a compalling of their death, or an 
overt-a£l to prove the lame ; what ihall be faid a compailing 
of the king's death, hath been at large declared, much 
whereof may be applied to the queen or prince, but not uni- 
verfally ; for the king is above the coercion of the law, tho 
his anions are not exempted from the direftion of the law 
in many cafes ; but the queen and prince are fubjetls of the 
king, and fubje£is to the laws ; whence it comes to pafs, that 
there are certain overt-a<91s manifefting compaflmg the king's 
death, which are Ipecifical and appropriate to the king and 
his fovereign power and royal dignity, which are not appli- 
cable to the queen or prince. 

If a man compafs to imprifon the king, tho it be colour- 
ably done by procefs of law, it is a compaihng of the king's 
death within this a'fl, as hath been Ihewn. 

But if the queen or prince conimit a miidemeanor of fuch 
3 nature, as is a contempt againrt the king's laws, to which 

^ impri- 



!Z8 Hi fl or I a Placltorum Coroiiie, 

imprlfonment is proper, as in cale of treaion, felony, rcfciie, 
they may be impriioned by procefs of law without danger 
of treafon : thus was the fon of Henry IV. committed by 
Giifcoign chief juftice for refcuing a priloner from the bar j 
and ieveral a£ls of attainder of treafon have pailed in parlia- 
ment againfl fome queen-conforts, as appears by 28 H. 8'. 
cap. 7. 33 H 8. cap. 21. againil queen Catharine Harvard, 
Rot. Pari. $ H. $. n. 11. 

Again, to compafs to depofe the king is treafon, but to 
compafs a divorce between the king and queen by the king'3 
commiflion by due procels of law was no treafon, as ap- 
pears in the procefs before the archbiiliop of Canterbury, 
whereupon queen Catharine, and afterwards queen Anne were 
divorced. .; ■ • ' 

The compaffing therefore of the death of the queen of 
prince, which is treafon within this aft, is where a man with- 
out due procefs of law exprefly compaffeth the wounding ot 
death of them either by force or poifon. 

And thus much for treafon in compaffing the death of the 
king, queen, or prince ; and becaufe the next treafon de- 
clared, namely the violation of the king's wife, the king's el- 
deft fon's wife, the king's eldeft daughter, hath not much to 
be fiid concerning it, I fliall clofe this chapter with it. 

I. The viohtting the kings companion^ that is the king's 
wife, the queen confort, her hufband being now living ; this 
Is high treafon,- and fo It Is In her if ilie confent, P. iZ H. 8. 
33 H. 8. cap. 21. Co. P. C. p. 9. 

. . 2 . The rvife of the kings eldefl fon and heir, a. princefs 
confort, and during the coverture between them j and If Ifie 
confent, It Is treafon In her. 

3. The kings eldeft daughter not married : this extends 
to a fecond daughter, the eldelf being dead ;■ for fhe Is now 
eldeft, and, for want of Iffue male, inheritable to the crown ; 
but. at common law this treafon extended to any of the daugh- 
ters. Briton^ cap. 22. §. 7 i. It extends to an eldeft daughter,- 
tho there be ions j and quaere, whether to an eldeft daughter, 
that hath been married, and Is now a widow, nient marry 
may be conftrued either way 3 or if it doth, yet whether ir 
3 extends 



Hijioria Placitorum Corona. izp 

extends to an elJefl: daughter, that is a widow, and hath cliil-* 
dren by her hulband ; the words of the old books are avdnt ceo^ 
qel efl marry : it feems;, that if the eldeft daughter hath been 
once married, llie is not within this law, becaufe of the words 
nient marry^ tho the reafon may poflibly be the fame ; and it 
feems, tho there be Ions, yet the violating of the king's el- 
deft daughter, being within the exprefs words of the law, the 
violation of her is within this law, becaufe within the words ; 
and yet the violation of the wife of the king's fecond fon is 
not within this ftatute, yet he and his iffue is inheritable to 
the crown before the eldeft daughter ; ill this cafe therefore 
the words of the law are to govern. 

Altho It iliould feem probable, that the eldeft fon of the 
prince after the death of his father may be the king's eldeft 
Ion within this a6l, as is before obferved ; yet the daughter 
of the king's eldeft daughter, after her mother's death, feems 
not an eldeft daughter within this a6l, her grandfather being 
living, for the grandlon, who is heir apparent of the crown, 
is of more conlideration than the daughter of a daughter, 
who cannot be heir apparent, becaufe a fon tnay be born. 

^Mrcy whether violating the eldeft daughter, after the 
death of the king her father, be treafon within this a6l, where! 
a fon fucceeds to the crown : it feems not, for the relation 
is ceafed. (c) 

And thus far for the two firft branches of high treafon. 

L 1 CHAP. 

(c) She is no longer le'igne .file le roy, it follows of courfe that the elded fori 
Ir having been before obferved that a and the eldeft daughter of fuch a quean 
queen regent is a king within this aft, Is likcwife within it. Co. 'P, C. /. 8. 



130 Hifioria Placitorum CoroUije. 

. — . — , — , _ • '■ » » 

CHAP. XIV. 

Concerning levying of war againjl the king. 

THE jus gladii, both military and civil, is one of the 
jura majefiatisj and therefore no man can levy w'-ar 
within this kingdom without the king's commiflion. Co. P. C. 
J>. 9. See the ftatute, or rather proclamation (a) de defen- 
fione portandi arma, wherein it is recited by the king, 
that the prelates, earls, barons, and commonalty illoeque <?/- 
emhles en avijement fur cefl hejoigne nous eiont dit, que a nom 
appent ^ de nous par noflre royal feignorie defendre fortment 
des armes, iff de tout autre force contre noflre peesy a touts les 
foit^^ que nous plerra {b) ; and hence it is in all declarations 
and indiftments touching things done againfl: the peace, the 
conclufion goes contra pacem domini regis. 

It is true, there have been great difputes in this kingdom 
touching the difpolition of the militia of this kingdom, which 
are now all fettled, and declared to be the right of the 
crown by the ftatutes of i 3 Car. 2. cap. 6. and i:^ iff i/^ Car. 2, 
cap. 3. 

Now as to this claufe of high treafon, Ou fi home leiy 
guerre countre noflre feigneur le roy en flon realme. 

To make a trealon within this claufe of this ftatute there 
miift be three things concurring. 

I. It muft be a levying, of war. 
. IL It muft be a levying of war againfl the king. 
III. It muft be a levying of war againft the king in his 

realm. 

I. For the firft of thefe, the acl faith levy guerre ; what 

fhall be laid a levying of war, is in truth a queftion of fa6l, 

2 and 

(^d' In the feventh year of Edifard I. tion againfl: coming armed to the par- 
(l) This rtatute is only a proof of Wdmcnx. Vide Rot. 'Pari, ^'j E, ■>,. fars.i. 
the king's power to iflae his proclama- n. 58. dorfo. 



Hiftoria Placitorum Coroucje. 131 

and requires many circiimftances to give It that denomina- 
tion, which may be difficult to enumerate or to define ; and 
commonly Is expreffed by the words more guenino arraiati. 

As where people are alTembled in great numbers armed 
with weapons offenfive, or weapons of war, if they march 
thus armed in a body, if they have chofen commanders or 
officers, if they march cum vexillis explicatis or Vv^ith drums 
or trumpets, and the like; whether the greatnefs of their 
numbers, and their continuance together doing thefe a6ls 
may not amount to more guerrino arraiati^ may be conli* 
derable. 

But a bare confpiracy or confultatlons of perfons to levy 
a war, and to provide weapons for that purpofe ; this, tho it 
may in fome cafes amount to an overt-a£l of" compaffing the 
king's death, yet it is not a levying of war within this claiife 
of this ftatute ; and therefore there have been many tempo- 
rary a£ls of parliament to make fuch a conlpiracy to levy 
war treafon during the life of the prince, as i 3 £//^;. cap. 1 . 
I 3 Car. 2. cap. i. and others. Jlde accordant Co. P.C. p. 10. 

Again, the aftual afTembling of many rioters in great num- 
bers to do unlawful acfs if it be not modo guerrino or in jpe- 
cie belli, as if they have no military arms, nor march or 
continue together in the pofkire of war, may make a great 
riot, yet doth not always amount to a levying of war : xids 
ftatute 3 ^ 4 £. 6. cap. 5. i Mar. cap. 12. {c) 

II. As to the fecond ; the ftatute faith, (againfi us) to 
make it therefore treaion, it muft be a levying of war againft 
the king ; otherwife, tho it be more guerrino, and a levying 
of war, it is not treafon. i . Therefore if it be upon a pri- 
vate quarrel, as many times it happend between lords marchers, 
tho it be vexillis explicatis, it feems no levying of war againft 
the king. 2. If it be only upon a private and particular de- 
lign, as to pull down the inclofures of fuch a particular com- 
mon, it is no levying of war againft the king. Co. P. C. p. 9. 
3. But a war levied againft the king is of two forts, i. Ex- 
prefty and dlredlly, as raihng war againit the king or his ge- 
neral and forces, or to furpriie or injure the king's perion, 

or 

(0 See alfo I Geo. i. «/. 5. 



132. Hijioria Placitorum Coronce. 

or to imprifon him, or to go to his prefence to enforce him 
to remove any of his minifters or counfellors, and the like. 
2. Interpretatively and conftriiftively, as \vhen a war is le- 
vied to throw down incloiiires generally, or to inhanie fer- 
vants wages, or to alter religion el1:ablillied by law ; and 
many inilances of like nature might be given • this hath 
been refolved to be a war againft the king, and treafon 
within this clauie ; and the conlpiring to levy fuch a war is 
treafon, tho not within the a£l: of 25 £. 5. yet by divers 
temporary a6ls of parliament, as i ^ Elixc during the queen's 
life, 1 3 Car. 2. during our king's life. Co. P. C. p. 10. 

I'he firft refolution, that I find of this interpretative levy- 
ing of war, is a refolution cited by my lord Coke, P. C. p. 10. 
in the time of Henry VIII. for inhanfmg fervants wages ; and 
the next in time was that of Burton, 3 9 Eli^. Co. P. C.p. 1 o. (d) 
for railing an armed force to piill down incloiiires generally : 
this is now fettled by thefe inifances, and fome of the like 
kind hereafter mentiond ; the proceeding againft Burton and 
his companions was not upon the l^atute of 25 £. 3. which 
required, that in new cafes the parliament fliould be firft con- 
fulted ; but upon the ftatiite of i 3 £//g:. for conlpiring to le- 
vy war, which hath not that clauie of confulting the parlia- 
m.ent in new caies, and therefore ieems to leave a latitude to 
the judges to make conilruftion greater, than that w^as left 
by the itatute of 2 5 E. 3. 

Thefe refolutions being made and fettled we muft acqui- 
efce in them ; but in my opinion, if new cafes happen for 
the future, that have not an expreis refolution in point, nor 
are exprefly within the words of 2 5 £. 3 . tho they may feem 
to have a parity of reafon, it is the lafefl way, and mcft agree- 
able to the wiidom of the great aft of 2 5 £. 3 . iirll: to con- 
fult the parliament and have their declaration, and to be very 
wary in multiplying conf-lrii£live and interpretative treafons, 
for we know not where it will end. 

But particular initances will belt illullrate this whole learn- 
ing, which I lliall iubjoin, tho iome\\diat promifcuouily, as 
they occur to my memory. 

2 A con- 

(^) 7oJ>b. 122. 



Hi/lor i a Placitoriim Coron,^. 13^ 

A confplring or coihpafluig to levy war is not a levying 
war within this a£l:j tinlels the war be levied ; this appears 
Co. P. C. p. 9. and alio by thofe many afls of parliament £- 
bove-mentiond, which were but temporary and limited to 
continue during the life of the king or queen, whereby it is 
fpecially enabled, that fuch compalhng to levy war ihall be 
treafon ; which needed not have been, if it had been treafon 
by the itatute of 2 5 £* 5. Vide i i^ 2 P. i^' Af. cap. 10. i £//'^. 
ccip. 5. 13 £//:?:• cap. r. 13 Car. 2. cap. i. 

And therefore in the cafe of Robert Burton and others^ 
that confpired to aflemble themfelves and pull down inclo- 
fures, and to gain arms at the lord Morris's houfe, and to 
arm themfelves for that purpofe. Co. P. C. i o. they were in- 
dicled and attainted purely upon the ftatute of i 3 Eli^. 
cap. I . whereby coniplring to levy war is made treafon. 

But if divers conipire to levy war, and fomie of them ac- 
tually levy it, this is high treafon in all the confpirator?, 
becaufe in treafon all are principals, and here is a war Ic* 
vied, (e) 

If divers perfons levy a force of multitude of men to 
pull down a particular inclofure, this is not a levying of war 
within this fcatute, but a great riot ; but if they levy war to 
pull down all inclofures, or to expulfe ftrangers, or to re* 
move counfellors, or againft any ftatute, as namicly the fta- 
tute of Labourers, or for inhanfing falaries and wages, this is 
a levying war againft the king, becaufe it is generally againft 
the king's laws, and the offenders take upon them the refor- 
mation, which fubjefts by gathering power ought not to do. 
Co. P. C. p. 9, 10. Fide the -dS: 7^ i^ ^ E. 6 . cap. 5. " If any 
*' to the number of twelve Ihall intend, go about, pra^liie 
" or put in ure by force to alter the religion eftabliihed by 
" law, or any other laws, and depart not within an hour ar- 
" ter proclamation, or after that ihall wilfully in a forcible 
" manner attempt to put In ure the things above fpecified^ 
*' then it is high treafon." 

If men levy war to break prlfons to deliver one or more 
particular pcrions out of priion, wherein they are lawililly 

JVl m imprifcncdj 

(e) Co. T. a t'. 5. Kdyng, p. i?. 



154 Hiftoria Placitonim Coro^jo', 

imprifoned, iinlefs fiuh as are imprilbned for treafon ; thi.s 
upon advice of the judges upon a Ipecial verdift found at the 
Old Bailey was ruled not to be high treafon, but only a ^reat 
riot 1 658. but if it were to break prifons, or deliver perfons 
generally out of priroo, this is treaion. Co. P. C. p. 9. 

There was a ipecial verdi£l found at the Old Bailey anno 20 
Car. II. (/), that A. B. and C. with divers perfons to the num- 
ber of an hundred affembled themlelves modo guerrino to pull 
down bawdy-houfes, and that they marched with a flag up- 
on a ftajff and weapons, and pulled down certain houfes in 
profecution of their confpiracy ; this by all the judges affem- 
bled, except one {g\ was ruled to be levying of war, and fo 
high treafon within this rtatute j and accordingly they were 
executed. 

But the reafon that made the doubt to him that doubted it, 
was I. Becaule it feemed but ?ji unruly company of ap- 
prentices, among whom that cuftom of pulling down bawdy- 
houfes had long obtaind, and therefore was idually reprefled 
by ofiicers, and not punilhed as traitors. 2. Becaufe the 
finding to pull down bawdy-houfes, might reafonably be in- 
tended two or three particular bawdy-houfes, and the indefi- 
nite expreflion lliould not in materia cdiofa be conftrued either 
univerfally or generally. And 3. Becaufe the ftatute of i 
Mar. cap. 1 2. tho now difcontinued, makes affemblies of a- 
bove twelve perfons and of as high a nature only felony, 
snd that not without a continuance together an hour after 
proclamation made ; as namely an affem.bly to pull down 
bawdy-houfes, burn mills or bays, or to abate the rents of 
any manors, lands or tenements, or the price of vi£luals, 
corn or grain ; or if any perfon Ihall ring a bell, beat a drum 
or found a trumpet, and thereby raife above the number of 
twelve for the purpofes aforef^id, which are raifed accordinc^- 
ly and do the faft, and difTolve not within an hour after 
proclamation, or that fhall convey money, harnefs, artillery, 
it is ena6kd to be felony ; and if any above the number of 
two, and under twelve, do praftife with force of arms un- 
lawfully, and of their own authority to kill any of the 
5 queen's 

(f) Vide Keljag f. ;-, ^c. ' g) This w;ij oar author blnifdC Vids Ktl^r.g j$. 



Hifioria Placttorum Cor once. 139 

queen's liibje£ls, to dig up pales, throw down inclofures of 
parks, pull down any houie, mill, or burn any Hack oi 
corn, or abate rents of manors, lands or tenements, or price 
of corn or viftual, and do not depart within an hour after 
proclamation, and continue to attempt to do or put in ure 
any of the things above-mentioned, they are to have a year's 
impriionment. 

And the ftatute of 3 (^ 4 £. ^. ca^, 5. is to the fame pur- 
pofe, only if the number of forty, or above, come together 
to do fuch a£!:s as before, or any other feloni(uis, rebellious 
or traicerous a£ls, and continue together two hours, it is 
made high treafon. (A) 

But yet the greater opinion obtaind, as it was fit ; and 
thefe apprentices had judgment, and fome of them were exe- 
cuted as for high treaion. 

Yet this uie may be made of thofe ftatutes: i. That there 
may be feveral riots of a great and notorious nature, which 
yet amount not to high treaion. 2. But again, thofe afls 
and attempts pofFibly might not be general, but might be di- 
re£led only to fome particular inllances, as for the purpofe, 
not to pull down all houfes or mills, but fome fpecial ones, 
which they thought offenfive to them ; nor to abate the 
rents of all manors, but of fome particular manor, \\'hereof 
they were tenants ; nor to make a general abatement of the 
prices of vlftuals or com, but in lome particular market, or 
within fome precinft ; and fo crolTeth not the general learn- 
ing before given of conftru£l:ive treafon. 3. It feems by that 
a£l: alfo, they did not take the bare alTembly to that intent 
to be a fufficient overt-a£l: of levying of war ; that was but 
an attempt and putting in ure, unlels they had a£lually be- 
gim the execution of that intention, going about, praftifing 
or putting in ure ; for this aft puts a difference between the 
fame and the doing thereof. 

In the parliament of 2 o £. i . now printed in Mr. 'Rylcy^ p-ll' 
it appears th.ere arofe a private quarrel between the earls oiGlou- 
cejler and Hereford, two great lords marchers ; and hereupon 
divers of the earl of Glouceflers party with his content cum 

wuhitw 

(ZO See alfo I Geo. I. m/. 5, 



1^6 Hifforia Placitoriim Coroncc. 

■ ■" ■ ■ ■ ■ - - ■ — -J 

miiltitudine tarn eqnhim qiuimpcdititm exicrunt de terra ipjius comi-^ 
tis ^t^JNlorgannon cum vexlUo de armis ipjius comitis cxpUcato xerjus 
terram comitis Heref ' de Brecknock, ilf ingrejji fiierunt terram 
iUam per fpatium diiarum leucctrnm^ i^ illam depriedctti fuerimt^ 
^ bona ilia depn^data ufque in terram diSii comitis Glocellrix ad' 
dttxcrimti and killed many, and burnt hoiifes and commit- 
ted divers outrages ; and the like was done by the earl of 
Hereford and his party upon the earl cf Gloiicefler : they en- 
deavoured to excuie themfeh^es by certain cuiloms between 
the lords marchers ; by the judgment of the lords in parlia- 
ment their royal franchifes were leifed as forfeited during 
their lives, and they committed to prifon, till raniomed at 
the king's pleafure. 

Altho here was really a war levied between thefe two earls, 
yet in as much as it was upon a private quarrel between 
them, it was only a great riot and contempt, and no levying 
of war againft the king ; and fo neither at common law, nor 
within the ftatute of 2 5 £. 3. if it had been then made, was 
it high treafon. 

It appears by Walfingham jub anno 1403. a great rebellion 
was railed againft Henry IV. by Henry Percy fon of the earl 
of Northumberland and others : the earl gathered a great 
force, and a£lually took part with neither, but marched with 
his force, as fome thought, towards his fon, and, as others 
thou8,ht, towards the king pro redintegrando pads negotio ; he 
was hindred in his march by the earl of Wejlmorcland and re- 
turned to his houfe at Werkworth j the king had the vi6lory ; 
the earl petitioned the king ; the whole fa£l was examined in 
parliament, Rot. Pari 5 H. 4. n. 11. The king demanded the 
opinion of the judges and his counfel touching it : the lords 
proteft the judgment belongs in this cafe to them ; the lords 
by the king's command take the bufmefs into examination, 
and upon view of the ftatute of 2 5 £. 3 . and the ftiatute of 
Liveries " Adjugercnt^ qe ceo, qe fuit fait par k counte, nefi 
" pas treafon J ne felony, mes trejpajs tantfolemcnt, pur quel tref 
" pafs le dit counte deufl faire fine i^ ranfom a lolunte du roy ;" 
but Henry the fon was attaint of treaion. 

5 It 



Hijloria Placitorum Cor once, 137 

It appears not what the reafon of that judgment wc.s^ 
whether they thought it only a compaffing to levy war, and 
no war aftually levied by him, becaufe not actually joined 
with his ion ; or \\^hether they thought his intention was on- 
ly to come to the king to mediate peace, and not to levy a 
war, nor to do him any bodily harm ; that it was indeed an 
offenfe in him to raife an army without the king's commif- 
lion, but not an offenfe of high treafon, becaule it did not 
appear that he raifed arms to oppofe the king, but poffibly to 
allift him ; but whatever was the reafon of it, it was a very 
mild and gentle judgment, for the earl was doubtful of a 
more fevere judgment ; nota^ he returns thanks to the lords 
and commons de low hone iff entyre coers a lui monflre, and 
thanks the king for his grace. 

The claule in the If atute of 2 5 E. ^ . If any man ridd 
armed covertly or jecretly with men of arms againfi any other 
to flay, rob J or take him, or to detain him, till he hath made fine 
or ranfom, or have his deliverance, it is not in the mind of the 
king or his council, that in fuch cafe it fJjall be judged treafon, 
but /hall be judged felony or trefpafs according to the larvs of the 
land of old times ufed, and according as the cafe requireth -, and 
if in fuch cafe or other like (i) before this time any judges 
have judged treafon, and for this caufe the lands and tenements 
have come to the kings hands as forfeited^ the chief lords of the 
fee fljall have the efcheat. 

This declares the law, that a riding armed with men of 
arms upon a private quarrel or deiign againlt a common per- 
fon is not a levying of war againll the king (k) ; and the 
efpecial reafon of the exprefs adding of this claule leems to 

N n be 

(/) VideJImilc H. 16. E. 3. coram regc, of EJcx, c.ttra&audo Jihi regalem po- 

Ror.^o. Rex. Hale. tejlatem, n^on v.'h\ch S\r ^ohn Fit z'xai!- 

This cafe was in the county of Ef- r^r furrendcrd himfelf, and was commit- 

fex, and was no more than this ■■, Sir ted to the 'Tower of Lor.don^ and Tiai- 

jfohii Fitzivaiiter and William 'Baltrip trip was outlawed, who afterwards ple^d- 

his fteward, lyc. were prefented by ju- ed the king's "^zrAon pro fcluniis, cuiifpi- 

rics of divers hundreds for taking men ratione, niainitenetitia ijj traujgrcffioni- 

by force, and detaining them till they htti prrcdidn , nccnon pro ntlagariii 

paid fines for their ranlom, for exading cccajioae prcemiffortim in ipjhm frcmul- 

and extorting money from others, and g^'^tii, upon which he was difcharged 

for leveral great and enormous riots, niif- Jine die. 

demeanors r.nd trefpr.fles in the county \\C) Co. 'P.C. p. lo. 



138 Hifloria Placitorum Coroncc. 

be in refpe6i: of that judgment of treafcn given againft Sir 
John Gerherge^ Trin. 2 i R 3. Rot. i^. Rex. and at large be- 
fore mentiond, cbctp. 1 1 . which judgment is in efFeft repeald 
by this a£l. 

It appears by Sir R Moore s Rep. n. 849. (/), the earl of Ej- 
Jex was arraigned and condemned for high treafon before 
the lord high Ifeward, whereupon it was refolved by the jii- 
flices, I . That when the queen lent the lord keeper of the great 
leal (m) to him, commanding him to diimiiis the armed per- 
fons in his houfe and to come to her, and he relufed to 
come, and continued the arms and armed perions in his 
houfe, that was treafon. 2. That when he went wirh a 
troop of captains and others from his houfe into the city of 
London^ and there prayed aid of the citizens in defcnfe of 
his life, and to 2:0 with him to the queen's court to brines 
him into the queen's prefence with a ftrong hand, fo that he 
might be powerful enough to remove certain of his enemies, 
that were attendant on the queen, this was high treafon, 
becaufe it tends to a force to be done upon the queen, and a 
relfraint of her in her houfe ; and the h.Q. in London was ac- 
tual rebellion, tho he intended no hurt to the perfon of 
the queen. 3. That the adherence of the earl o£ Southamp- 
ton to the earl of Ejfex in London ^ tho he did not know of 
any other purpoie than of a private quarrel, which the earl 
of Ejfex had againft certain fervants of the queen, was trea- 
fon in him, becaule it was a rebellion in the earl of Ejfex, 
4. That all they, that went with the earl of Ejfex from Ejfex- 
houfe to London, whether they knew of his intent or not, 
were traitors, whether they departed upon the proclamation 
or not ; but thole, that fuddenly adhered to him in London, 
and departed upon the proclamation made, were within the 
proclamation to be pardoned : there were other points refolved 
touching the manner of his trial, whereof hereafter. 

The whole hiftory of Ejfex his treafon and the proceeding 

thereupon is fet forth at large by Camden anno 44 Eli-zi. p. 604. 

^ jcqiiemibiis, wherein the charge of his indi£lment appears 

to be, that he and his accomplices had confpired to deprive 

2 the 

(0 /. do. {in) And others of her council, 



Hi ft or I a Placitcnim Corona. 1^9 

the qiisen of her crown and life, having confiiked to iiirprize 
the queen in the court ; and that they had broken out into 
open rebellion by impriioning the counfellors of the realm, 
by ftirring up the Londoners to rebellion by tales and ii6lions, 
by affaultinu; the queen's faithful fubjedls in the city, and de- 
fending the houfe againft the queen's forces ; fo that the great 
j>art of the indiflment was compallmg the queen's death, 
and the rell of the charge were the overt-a£ls, \\'hich was 
treafon within the flatute of 25 £. 3. with which ray lord 
Coke agrees, P.C. p. 12. 

If divers perions levy war againft the king, and others 
bring them relief of viftuals pro timore mortis^ iff recefferunp 
quam cito potuerimt, this was adjudged not to be a levying of 
war, becauie pro timore mortis ; qiure, if the fame lav/ be in 
caie of marching with them in their company for fear of 
death. Co. P.C. p. 10. vide f up. cap. 2. Mich. 11 E. 3. Rot. 
I o I . Line, coram rege. Illi, qui coacli fuerunt ad denarios red- 
piendos iff fimidter coaSii juraverimt, dimittuntur per curiam per 
manucaptionem, quia fie in perjonis ipforum nihil mali reperitur., 
in caie of a great riot, not unlike a levying of war, for 
which they were indifted of treafon. 

Rot. Par. i"] R. 2. n. 20. upon the complaint of the dukes 
of Aquitain and Gloucefier, fhewing that Thomas Talbot and 
others his adherents by confederacy between them fauxment 
conjpirerent pur tiier les dits dues uncles le roy iff autres per/ones 
grants de realme^ iff pur dccomplyer le malice fufdit le dit Tho- 
mas isf les autres miflrent tout lour poyar, come notoirement 
efl conus, iff le dit Thomas ad en grand party confejje, en ani- 
cntifment des eflats iff de loys de voftre realme, iff Jur ceo firent 
divers gents lever armes^ iff arrayes a feire de guerre en ajfem- 
hles iff congregations a tres grant iff horrible number en divers 
parties en les countie de CeJIre, and pray that it may be de- 
clared in this parliament the nature, pain and judgment of 
this oflenfe : the conclulion whereof was thus ; 

" Efi avys au roy iff a les feigniors de cefl parlement en droit 
" de mejme la bille tauchant Thomas Talbot, que la matter con- 
" tenus en la dite bill cjl overt iff haut treajon, iff touche la 
*' perfon du roy iff tout Jon realme, iff pur treafon le roy iff 

" touts 



140 Hijioria Placitorum Corona. 

" touts les jeigneiirs fufdits adjug^ent ^ declarant j" and there- 
upon writs ol proclamation for his appearance in the kino's 
bench are ordered to iffae for his appearance in one month, 
or otherwife to be attaint of treafon («) ; vide Paj. 17 R. 2. 
B. R> Rot. 1 6. Rex. Writs of proclamation iffued accordingly 
to the ilieriffs of Torkjhire and Derbyflnre, and the Iherifts re- 
turned non eft inventus ; Talbot afterwards came and renderd 
himlelf, and was committed to the Tower, and afterwards a 
Superfedeas came for his enlargement. (0) 

But this declaration being only by the king and houfe of 
lords is not a conclufive or a fufficient declaration of treafon 
according to the purview of this fbitute, but yet it was a 
real levying of war againft the king, becaufe done more guer* 
rino and by people arrayed de fet de guerre, as in Benfteds 
cale hereafter mentiond ; but had it been a bare confpiracy, 
it had not been treafon, as appears by the fpecial ftatute of 
3 H. 7. cap. 14. whereby a confpiracy to kill the king with- 
out an overt-a^l, (for then it were treafon within the ftatute 
of 25 £. 3.) or a confpiracy to kill any of his privy council 
and certain great officers, tho the event followed not, is 
made felony. 

See for inftances of very great riots with multitudes of 
perfons modo guerrino arraiati, which yet amounted not to 
high treafon, becaufe upon particular quarrels and differences 
between private perfons. Clauf. 5 E. 2. M. 4. inter Griffinmn 
de Pole {^ Johannem de Cherleton pro caftro de Pole. Pat. 
8 E. ^. part i. w. 7. dorf. between the citizens and bifliop of 
Norwich (p). Rot. Pari. 5 R. 2. ». 45. between the town and 
univerlity of Q/w^n^^^. Rot. Pari. 1 i H. 4. ». 37. iff fequenti- 
bus, between Hugh de Erdefwick and others touching the caftle 
of Both all. Rot. Pari 13 H. 4. n. 12. between the lord Rojs 
Sir Robert Tyrrhyt touching Turbary In Wroughtly. Rot. Pari. 4 
2 H5. 

(«) And all perfons, that fhall receive for his enlargement, Sed quod cuiciinq; 

the fajd Z'xxThomai 'Talbot within the frtcejfui vcrfut jpfum Thomam Talbot 

realm of England, after the faid month ex can/is preedifln tilterias faciendo fu- 

clapfed from the time of the faid pro- ferfcdca^if, qnoiifqiie alhid a rcge inde 

clamation, are declared guilty of high hahverint hi jnandatis, 

treafon upon conviflion of fuch harbour- (p) This is not to be found among 

jng or receiving. the records, 

ip) The Sujjcrfcdeai was not exprefly 



Hifloria Placitorum Corona. 141 

H 5. w. I 5. between Robert Whittington and Philip Lingdon and 
others. H. 26 E. 3. Rot. 30. Rex. Fit^^dters cAe. (q) 

All which, tho they were enormous riots, and done more 
guerrino, yet being private and particular quarrels, not 
•much unlike that between the earls of Gloucejler and Herefordy 
did not amount to high treaion, but contempts, riots ; or, 
if death enfued, felony, as the cafe required. 

But "oing in a warlike manner with drums and arms to 
furprize the archbiihop of Canterbury, who was a privy coun- 
fellor, it being with drums and a multitude (as the indi£l-» 
ment was) to the number of three hundred perfons, was ru- 
led treafon by all the judges of England^ and the oftenders 
had judgment accordingly ; and at the lame time by ten of 
the judges it was agreed, that the breaking of prifon, where 
traitors were in durance, and caufmg them to eicape was trea- 
fon, altho the parties did not know that there were any trai* 
•tors there, upon the cafe of i H. 6, 5. b. and fo to break a 
prifon where felons are, whereby they eicape, is felony \\dth» 
out knowing them to be impriioned for luch cffenle. P. 1 6 
Car. Croke, Thomas Benfled's cafe, (r) 

The cafe of Sir John Oldcaflle for levying of war againll 
the king is entred Rot. Pari. 5 K 5. w. i i . 

The twenty-fifth of September anno domini 1 4 1 3 , Thomas 
archbiiliop of Canterbury the pope's legate by his ientence de- 
finitive declared Sir John Oldcaftle lord Cobham an heretic, e- 
fpecially in the point of the facrament of the eucharift and 
penance, excommunicated him, relinquentes ipjum ex nunc 
tanquam kcreticum judicio j^culari. (f) 

Hill. I H. $. Rot. 7. inter placita regis, AUddlefex, there is 
an indi61;ment againlt him before certain commiilioners of oyer 

O o and 

(q) Nicholas Sr!t72/fijh and others to nors belonging to the faid Sir ^ohi ; but 

ihe number of one hundred were fent by neither this riot, nor any other the f.ifls. 

Sir jfobn Fit-z-zvauter armed ///iri.f, gla- which he or his accomplices were indi(2- 

/iiis, lokclariis, arciilits i^fagittis ad mo- cd for, were conceived to amourit to trca- 

diim guerre to feize and take loves, aft- fon, lince none of them were arraigned of 

?jo.f, S5?c. oiTl:oj7ias Hubert in Herla-zvr more than felony; vide fu^ra in }io:is, 

upon the lands of the faid 2^^o;^?^5, y«^.f /. 1^7. . - 

jcnuit dc aliis dominii iSi vihil de ipj'o {r) Cro. Car. 583. W. yo72CS 455, 
yohaniic Fitzzvatner j accordingly they {J'j See Stare 7*r. FoL I. /. 41. 
did fo, and carried them away to m.t- 



142, Hifloria Placitorum Cor on ^e. 



and terminer of London and Middlefex, returned into the 

king's bench to this effe6l ; (t) 

" Qiiod Johannes Oldecaflell de Coulyng in com' Kane chiva- 
ler, & alii lollardi vulgariter nimcupati, qui contra fi- 
dem catholicam diverfas opiniones hxreticas & aLos er- 
rores manifeftos legi catholicse repugnantes, a diu eft, te- 
merarie tenuerunt opiniones & errores pra^diflos manute- 
nere, aut in fa6lo minime perimplere valentes, quam diu 
re^ia poteftas & tam ftatus regalls domini noftri regis, 

" quam ftatus & officium pra^latiiE dignitatis, infra regnum 

" AnglU in profperitate perfeverarent ; filto & proditorie 
machinando tam ftatum reglum quam ftatum & officium 
pr2elatorum, nee non ordines religioforum infra di£lum reg- 
num Angl'u penitus adnullare ac dominum noftrum regem, 

" fratres fuos, praelatos & alios magnates ejufdem regni in- 
terficere, nee non viros religiofos, reli£lis cultibus divinis 
& religiofis obfervantils, ad occupationes mundanas provo- 
care ; & tam eccleiias cathedrales, quam alias ecclelias & 
domos religiofas de reliquiis 8r aliis bonis eccleliafticis tota- 

*' liter fpoliare ac funditus ad terram profternere, & di(3:um 
Johannem Oldecaflell regentem ejufdem regni conftituere, & 
quamplura regimina iecundum eorum voluntatem infra 
regnum pr2edi(3:um, quail gens fine capite, in finalem de- 
ftru6lionem tam fidei catholicas & cleri, quam ftatus & 
majeftatis dignitatis regalis, infra idem regnum ordinare, 
falio & proditorie ordinaverunt & propofuerunt, quod 
ipli inlimul cum quampluribus rebeliibus domini regis ig- 
notis ad numerum viginti millium hominum de diveriis 
partibus regni AnglU modo guerrino arraiatis privatim in- 
furgerent, & die Mercurii proximo poft feftum Epiphanu 
domini anno regni regis nunc primo apud Fillam & paro- 

" chiam fanfti Egidii extra barram veteris Templi London m 

" quodam magno campo ibidem unanimiter convenirent & 

" inlimul obviarent pro nefando propolito fuo in prsemiffis 

1 " perim- 



a 

a 
ii 

a 



ti 



u 
a 
u 
ii 

(C 

cc 

iC 

ii 



(0 See Srate 7r. Vol. "VI. Appe'ndix one ; but wliatever tTie indi^lment was, 

/. 4. tox in his afts and monuments, there is reafbn fufficient to believe the 

Vol. I. /. <f5 5. brings feveral arguments pretended confpiracy was fo. See Raj'ifi's 

to prove this indictment to be a forged hidory fiil; c.mw I4i4-' 



a 






Hijtoria Plac'ttorum Cor on d^, 145 

*' perimplendo, quo qnidem die Mercurii apud Vitlam & pa- 
rochiam pra^di^las prccdi£li Johannes Oldecaflcll Sz alii in hu- 
jufmodi propoiito proditorio perleverantes prccdiilum do- 
minum noftrum regem, fratres llios, viz. Tbomam duceni 
ClarencU, Johannem de Lancafire, & Humfridum de Lan- 
" caflre, nee non prselatos & magnates prsedidos interficere, 
nee non ipfiim dominum noftrum regem & hxredes 
fuos de regno fuo prsediflo exhseredare, &" pra^mifTa om^nia 
& fingula, nee non quamplura alia mala & intolerabilia 
*' facere & perimplere, falfo & proditorie propoluerunt 
" &r imaginaverunt, & ibidem verius campum pra2di£lum 
" modo guerrino arraiati proditorie modo inlurreftionis con- 
" tra ligeantias fuas equitaverunt ad debellandum dicliim do- 
" minum noftrum regem, nift per ipftim manu forti gratioie 
" impediti fuiftent, quod quidem indiclamentuiii dominus 
*' rex nunc certis de caulis coram eo venire fecit terminan- 

dum Per quod pra^ceptum fuit vie' quod non omitte- 

ret, &:c. quin caperet pra^iatLim Johannem Oldecaflell, ft, Bzc. 
& falvo, &c." upon this indi£lment removed into the king's 
bench he was outlawed. 

All this record and procefs at the requeft of the commons 
was removed into parliament, and in the preience of the 
cuflos regnU lords, and commons w^as read, and expounded in 
Englijh to Sir John Oldcaftle, and it was demanded wdiat he 
could fay why execution ftiould not be done upon him up- 
on that utlary ; and he faying nothing in his excufe " pur 
*^ que agard efl en mefme le parlement per les jeigneurs avant 
" dits, de fajfent de le dit gardein, isf a la pryer juijdit^ qe le 
*' dit John, come traytour a dleu i^ heretique notoirement ap- 
prove ilf adjugge, come peirt per un inflrument I'archevefque 
confue ala dors de cefi roll, ^ come traytour a roy ^ a Jon 
" roialme, foit amefne a la Tower de Londres, ^ d'illoeques foit 
treins per my le city de Londres, tanque as novel furches en 
le paroche de St. Giles hors de la barre de viel Temple de 
Londres, ^ illocques foit pendus-, iff ars pendant, (u) 

How 

(ti) The author of the trial of Sir which appointed that puniniment in 
yo/.'« OUcnflle Hiys, that this fentencc thofe cafes. See State Ir. fol. I. p. 49. 
was in purrLi;ince of an aift of pariiaojcat. 



ii 






ii 



144 Hijioria Placitorum Cor once. 

How this nobleman was piiriued by the eccieliaftlcs, and 
the whole ftory is fet down by Wcilfingham. 

That which I obferve in it is, i . That the indi6J:ment is 
principally founded upon that article of this llatute of com- 
pafiing the king's death, and yet die ov^ert-a£l is an ailemblv 
to levy war, and aftual levying of war. 2. Altho this in- 
dictment is not exprefly upon this claufe of lev^'ing of war, 
for that is not the principal charge of the indictment, but 
compaffing the king's death, yet the marching with a great 
army to St. Giles s modo guenino arraiati was an exprefs levy- 
ing of war, tho there w^ere no blow yet ftruck. But 3 . it feems 
their firft meeting to contrive their coming to St. Giles's, tho 
it might be an overt-acl to compafs the king's death, and fo 
treafon within the firft claufe of the ftatute, yet was not 
an aflual levying of war, and fo not treafon within that 
claufe of the ftatute ; but their aClual marching in a body 
modo guerrino ^ modo infurreBionis might be a levying of war 
within the ftatute. 4. That aClual levying of war, tho it 
be a treafon, upon which Oldcaflle might have been indi£led, 
yet it was alfo an overt-aCl to ierve an indidment for com- 
paffing the king's death, as hath been fhewed at large before. 

If there be an aftual rebellion or infurreClion, it is a le- 
vying of war within this aft ; and by the name of levying- 
of war it muft be expreffed in the indiClment. Co. P. C. p. 10. 

And in Anderjons Rep. part 2. n.i. after Trinity-term 37 
E//^. {x) before the two chief juftices, mafter of the rolls, baron 
Clerk and Ervens, the cafe was, that di\Trs apprentices of 
London- :\nd Soutbwark were committed to prifon for riots, and 
for making proclamation concerning the prices of viCluals, 
fome whereof were fentenced in the ftar-chamber to be fet 
in the pillory and whipt ; after which divers other apprentices 
and one Grant of XJxbridge confpire to take and deliver thofe 
apprentices out of ward, to kill the mayor of London, and to 
burn his houfe, and to break open two houfes near the Tower, 
where there were divers weapons and arms for three hundred 
men, and there to furnifh themfelves with weapons ; after 
which divers apprentices devifed libels, moving others to take 

(x) z And. 4, 



Hi fieri a Placitorum CorvHiC, 14^ 



part with them in their devices, and to r.ffemble thcmfeh'es 
at Bim-^nll and Towcr-hiil ; and accordingly divers afiem'olcd 
rhemreives at Bun-hill, and three hundred at the Tower, where 
they had a trumpet, and one that held a cioke upon a pole in 
lieu of a Has;, and in going towards the lord mayor's houie 
the ilierifts and fword-bearer with others oflered to reiift them, 
againft whom the apprentices ofterd violence. 

And it was agreed by the judges referees, that this was 
treaton within the ftatute of 1 3 £//t^. for intending to levy 
war againft the queen ; for they held, that if any do intend 
to levy war for any thing, that the queen by her laws or ju- 
ftice ought or may do in government as queen, that ihall be 
intended a levying of \^'ar againil: the queen ; and it is not 
material, that they intended no ill to the perfon of the queen, 
but if intended againil the office and authority of the queen, 
to levy war, this is within the words and intent of the fta- 
tute, and hereupon Grant and divers others were indi£l:ed and 
executed. 

And eodcm libra ?7. 49. (y) the cafe of Burton mentiond by 
my lord Coke, P.C. p. 10. is reported, vi^. in the county of Ox- 
ford divers perfons confpire to aflemble themielves, and move 
others to rite and pull down inclofures, and to efteft it thev 
determined to go to the lord Norris's houfe and others, to 
take their arms, horfes and other things, and to kill divers 
gentlemen, and thence to go to London, where they faid many 
\\'ould take their parts ; and this appeared by their confel- 
ftons : and it was agreed, i. That this v/as treafon within 
the ftatute of i 3 Eli^. for conlpiring to levy war againfl the 
queen, z. But not within the ftatute of 25 £. 3. becaule 
no war was levied, and that ftatute extended not to a conlpi- 
racy to levy war. 

Nota'j in both thefe cafes there was a confpiring to arm 
themfelves as well as to affemble, which had they effected 
and fo alTembled more guerrino, it had been a war levied, and 
by conftrufiion and interpretation a war levied againft the 
queen. 

Pp If 

(y) i .f«i. C^. 



14<5 Hiftoria Placitorum Cor once. 

If any with weapons invaiive or defenfive doth hold and 
defend a caftle or fort againft the king and his power, this is a 
levying of war againft the king within this a<9:. Co. P. C. p. i o. 
J^ide the ftatiite i 3 Eli^. cap. i . ^ diSia ibid, poflea. 

There is a great difference between an infiirreflion upon 
the account of a civil intereft and a levying of war. 

A. recovers poffeftion againft B. of a houfe, i!fc. in a real 
a£lion, or in an ejeSiione firm^, and a writ of feifin or poffef- 
lion goes to the Iheriff, B. holds his houfe againft the iherift' 
with force, and affembles perfons with weapons for that piir- 
pofe, who keep the houfe wdth a ftrong hand againft the Ihe- 
rift', tho aflifl^d with the pojfe comitatus : this is no treafon 
either in B. or his accomplices, but only a great riot and mif- 
demeanor ; the like is to be faid touching a man that keeps 
pofleftion againft a reftitution upon an indi£lment of forcible 
entry. 

But if B. either fortifies his own houfe or the houfe of 
another with weapons defenfive or invaiive purpofely to make 
head againft the king and to fecure himfelf againft the king's 
regal army or forces, then that is a levying of war againft 
the king. 

But the bare detaining of the king's caftles or Ihips feems 
no levying of war within this ftatute : xide infra i 3 £% 
cap. I. ^ diSia ibidem. 

If the king's lieutenant in a time of hoftility or rebellion 
within the realm be aflaulted upon their march or in their 
quarters as enemies, this is a levying of war ; but if upon 
lome fudden falling out or injury done by the foldiers, the 
countrymen rife upon them and drive them out, this may be 
a great riot, and if any be killed by the affailants it is felony 
in them ; but this feems not a levying of war againft the 
king, unlefs there be fome traitorous defign under the cover of 
it : and clauf. 26JS. 3. w. 24. it appears, that an open refiftance 
of the juftices of oyer and terminer m the county oi Surrey, vi^. 
refiflendo jufliciariis, ^ ipfos jiifticiarios, quo minus contenta in 
commijjione noflra eis inde faSta exequi ilf facere potuerunt, impe-* 
diendo, wm felony, and the oftenders were executed for the 
fame as felons. Touch* 



Hijioria Placitorum Corona. * 145 

I lliall conclude this matter with a conrultation of the 
judges, where I was prefent. All the judges except J. Wind- 
ham and J. Atkins were aflembled by my lord keeper Septem- 
ber 16-j 5. to coniider of this cafe, as it was ftated in writing 
by the attorney general in manner fbllou^ing. 

" A great number of the weavers in and about London 
being offended at the engine-looms, (which are inftru- 
ments, that have been uled above thefe fixty years,) rbe- 
caufe thereby one man can do as much in a day, as 
near twenty men without them, and by confequence can 
afford his ribbands at a much cheaper rate, after attempts 
in parHament " and ellewhere to iupprefs them did agree 
among themfelves to rife and go from houie to houfe to take 
and deftroy the engine-looms ; in purfuance of which they 
did on the 9th, loth and i ith of this inftant Aiigufl affemble 
themfelves in great numbers at fome places to an hundred, 
at others to four hundred, and at others, particularly at 
Stratford-Borv to about fifteen hundred. 
" They did in a mofl: violent manner break open the 
houies of many of the king's fubje6ls, in which fuch 
engine-looms were, or were by them fufpe6led to be, 
they took away the engines and making great fires burnt 
the fame, and not only the looms, but in many places the 
ribbands made thereby and feveral other goods of the per- 
fons, whofe houfes they broke open ; this they did not 
in one place only, but in feveral places and counties, 
v'lTi. Middlefex, London, Ejfex, Kent and Surrey, in the 
laff of which, 7;/^. at Southwark they ftormed the houfe 
of one Thomas Bybby, and tho they were refifted and one 
of them kild and another wounded, yet at laft they 
forced their way in, took away his looms and burnt 
them ; the value of the damage they did is computed 
to feveral thoufand pounds. 

" This they did after feveral proclamations made and 
command given by the juftices of peace and the flierifts 
of Middlefex to depart, but inttead of obeying they re- 

" fifted 



* 144 Hijioria PI act tor urn Cor once. 

*' filled and affronted the magiftrates and officers : It is 
" true they had no warlike arms, but that was fupplied by 
'' their number, and they had fuch weapons, as fuch a rab- 
*' ble could get, as llaves, clubs, Hedges, hammers, and other 
*' -fuch inftruments to force open doors. 

" There was this further evil attending this infurreflion, 
" that the foldiers and officers of the militia were fo far 
a from doing their duty in iuppreffing them, that fome, 
a tho in arms and drawn up in companies, flood l]:ill look- 
ing on while their neighbours houles were broken open 
and their goods deftroyed, others incouraged them, and 
others, to whofe cuftody fome of the offenders, who were 
taken, were committed, fufferd them to efcape, fo that 
during all the time of the tumult little or nothing was 
done to fupprefs them, until the lords of the council were 
conftrained at a time extraordinary to affemble, by whofe 
directions and orders as well to the civil magiftrates, as 
to the king's guards, they were at laft quieted. 



Five of the judges feemed to be of opinion that this 
was treafon within the a£l of 25 E. 3. upon the claufe of 
levying war againft the king, or at leaft upon the claufe of 
the ftatute of i 3 Car. 2. cap. i . 

1. In refpefl of the manner of their affembling, who, 
tho they had no weapons or enfigns of war, yet their 
multitudes fupplied that defeft, being able to do that by their 
multitudes, which a leffer number of armed men might 
fcarce be able to effe£l by their weapons ; and beiides they 
had ftaves, and clubs, and fome hammers or fledges to 
break open houies, and accordingly they a6led by breaking 
open doors and burning the engine-looms and many of the 
wares made by them. 

2. In refpeft of the defign itfelf, which was to burn and 
deftroy not the lingle engine-looms of this or that partit u- 
lar perfon, but engine-looms in general, and that not in 

3 one 



Hijloria Placitorum Corona. * 149 



one county only, but in feveral counties, and fo agreeable to 
Burtons cafe. 

The other five judges were not fatisfied, that this was 
treafon within the claufe of 25 JS. 3. againll levying of 
war, nor within the ftatute of i 3 Car. 2. for confpiring to 
levy war. 

1. It was agreed, that if men affemble together and con- 
fult to raife a force immediately or diredly againft the 
king's perfon, or to relfrain or depofe him, whether the 
number of the perfons were more or lefs, or whether armed 
or unarmed, tho this were not a treafon within this claufe 
of the ftatute of 2 5 E. 3 . yet it was treafon within the 
firfl: claufe of compaffing the king's death, and an overt- 
a6l: fufficient to make good fuch an indictment, tho no 
war was adually levied ; and with this accord the refolu- 
dons before cited, efpecially that of the infurre£lion in the 
north at Farley wood (^) ; but no fuch confpiracy or com- 
paffing appears in this cafe, and fo that is not now in que- 
ftion, but we are only upon a point of conftruilive or in- 
terpretative levying of war. 

2. Here is nothing in this cafe of any confpiring to do 
any thing, but what they really and fully efte^led j they a- 
greed to rife in multitudes to burn the looms, and accord- 
ingly they did it, but nothing of confpiring againft the fafety 
of the king's perfon, or to arm themfelves ; therefore if what 
they did were not a levying of war againft the king within 
the ftatute of 2 5 £. 3 . here appears no confpiring to levy fuch 
war within the ftatute of i 3 Car. 2. cap. i. for, for what ap- 
pears, all was done, which they confpired to do. 

3 . It feemed very doubtful to them, whether in the man- 
ner of this affembling it was any levying of war, or whe- 
ther it were more than a riot, for in all indi6lments of this 
kind for levying of war it is laid, that they were more 

guerrino 

(*) Vide fti^ra f, i20» 



I4<5 Hijforia Placitorum Coronne. 



guerrino arraiati, and upon the evidence, that they were af- 
lembled in a pofture of war armis offenfivis isf defenfivis, and 
fometimes particular circumftances alfo proved or found, as 
banners, trumpets, drums, ^c. and where they were indi£led 
for confpiring only to levy war, yet tliere was this circum- 
flance accompanied it, vini. a confederacy to get arms and 
arm themielves, as in Grant's cafe, and Burtons cafe. 

4. It feemed very doubtful to them, whether this defian 
to burn engine-looms were fuch a defign, as would make it 
a levying of war againft the king (^^), for it was not like the 
defigns of altering religion, laws, pulling down inclofures ge- 
nerally, as in Burtons cafe, nor to deftroy any trade, but 
only a particular quarrel and grievance between men of the 
fame trade againft a particular engine, that they thous,ht a 
grievance to them, which, tho it was an enormous riot, yet 
it would be difficult to make it treafon. Vide fiatutes S H. 6. 
Ciip. 27. ^ H. 6. cap. 5. (1). 

Many of them therefore concluded, that if Mr. Attorney 
fliotdd think fit to proceed as for a treafon, the matter 
might be fpecially found and fo left to farther advice, or ra- 
ther that according to the claufe of the ftatute of 25 £.3. 
the declarative judgment of the king and both houfes of 
parliament might be had, becaufe it was a new cafe and 
materially difterd from other cafes of like nature formerly 
relolved. 

Upon the conclufion of this debate we all departed, and 
Mr. Attorney upon confideration of the whole matter it ieems 
thought fit to proceed for a riot, and caufed many of them 
to be indifled for riots, for which they were conviiled and 
had great fines iet upon them, and were committed in exe- 
cution and adjudged to ftand upon the pillory. 

3 Touch- 

(*) By 12 Geo. i. ca_p. 54. " If any " purpofc, he fliaU be a<ijii<lnc,l rjuilty 

*' perfon fliall wilfully break any tools " of felony i\ithout benefit of elci^y, 

" ufed in the woollen manufafture, not (f) Concerning the riots comnmred 

" bavingtheconfentof the owner, or fliall by the JVdJJy upon the dragnicn oi Se- 

break or enter by force into any houfe c/fr;/, ■iv.'/c ivfra f. 151, 
" or /hop by night or by day for fuch 



Hifloria Placitorum Coroude. 147 



Touching the laws of treafon In Ireland^ by the ftatute of 
18 H. 6. cap. 3. levying horfe or foot upon the king's fub- 
je£ls againft their will ihall be treafon ; this they call celling 
of foldlers upon men, and hath been often done by the lieu- 
tenants or deputies of Ireland by confent of the council iii 
fome cafes. 

Among many cumulative treafons charged upon the late 
earl of Strafford the king's deputy in Ireland, this one thing 
of ceding of foldiers upon the king's iubjefts in Ireland was 
the chief particular treafon charged upon him. 

It was inhfted upon for the earl's defence, that by the fta° 
tute of 10 H. 7. in Ireland, cap. 22. called Poynin£s, law, all 
the ftatutes of England are at once enacled to be obferved in 
Ireland) and therefore the ftatute of 25 £. j. declaring trea- 
fons, and the ftatute of i H. 4. cap. i o. enacting, that nothing 
fiiall be treafon but what was within that ftatute, the trea- 
fons enafted in Ireland in the time of B. 6. and afterwards 
before 10 H. 7. were repeald, and confequently this ftatute of 
1 8 H. 5. cap. 3 . 

But that feems not to be fo, for the general Introduftion 
of the ftatutes of England being an affirmative law could not 
be Intended to take away thofe particular ftatutes, that were 
made In Ireland for the declaring of tlreafon, as this and that 
alfo of the fame year, cap. 2. for taking Comericke. (^) 

But furely this was no levying of war within this fta- 
tute (a)j either in refpefl of the matter Itfelf or of the per- 
fon that did it, he being the king's lieutenant, neither could 
an acl by the lord deputy and council of this nature be con- 
ftrued to be within the penalty of this aft, if it were In 
force ; yet for this and other cumulative treafons he was at- 
tainted by ad: of parliament, but that attainder was very 
juftly repeald by the ftatute of 14 Car. 2. 

Now 

(s) That is, for taking thieves, rob- exprefs words of that flatute ; nor doei 

bers, or rebels into fafe guard. our author aflign any reafon, why an aft 

(a) Tho this were not levying of of lord deputy and council is not within 

war, yet being ceffing of foldiers upon the penalty of that law. See Camd. 

the fubjeft, it was treafon within the Eliz. p. ■ii<). 



148 Hifloria Placitorum Corona:. 



Now I lliall draw out fome obfervations and concluiions 
from the precedents and inllances before gi^'en touching this 
obfciire claufe of levying war againft the king. 

I. A confpiracy or confederacy to levy war againft the 
king is not a levying of war within this claufe of the ftatute 
of 2 5 £. :> . for this claute requires a war a£tually levied. 
Co. P. C. p. I o. 

And this appears //y? by thofe temporary laws, that were 
made to continue during the king's or queen's life, which made 
confpiring to levy war with an overt-a6l evidencing fuch con- 
fpiracy to be treafon, as the ftatutes of i "^ 2 P/?. (^ M. cap. i o. 
1 3 £//^. cap. I. and i 3 Car. 2. cap. i. and fecondly by the re- 
iolution of the judges in the cafe of Burton 3 9 Eli':^. cited by 
my lord Coke^ P. C. p. 9, i o. 

2. That yet fuch a conlpiracy or compaffing to levy war 
againft the king direflly or againft his forces, and meetin"- 
and confulting for the eftefling of it, whether the number of 
the conlpirators be more or leis, or dilguifed under any other 
pretenfe whatfoever, as of reformation of abufes, cafting 
down inciofures particular or generally, nay of wreftlino-, 
football-playing, cock-fighting 5 yet if it can appear, that they 

oniulted or reiolved to raife a power immediately againft the 
king, or the liberty or fafety of his perfon, this congregating' 
of people for this intent, tho no war be aftually levied, is an 
overt-a£l to maintain an indi£lment, for compaffing the 
king's death within the firft claufe of the ftatute of z 5 £. 3 . 
for it is a kind of natural or neceffary coniequence, that he, 
that attempts to fubdue and conquer the king, cannot intend 
lefs, than the taking away his life j and indeed it hath been 
always the miferable coniequence of fuch a conqueft, as is 
witnelled by the miferable tragedies of £. 2. and R. 2. and 
this was the cafe of Oldcaflle and Effex. 

3. That yet confpiring to levy war, (viz,, to do fuch an 
a£l:, which if it were accomplillied and attained its end would 
be an a£tual levying of war) and being accompanied with an 
overt-ail evidencing it, (tho it be not treafon within this 
elauie of the a£l of 25 E 3.) yet was treafon during the 

2 queen's 



c 



Hiftoria Placitorum Cor once. 149 



queen's life by the ftatute of i 3 £//^. c^p. i . and is treafon 
at this day by the ftatute of i 3 Car. 2. cap. i. during the life 
of our now lovereign. 

But then the overt-ail (be it fpeaking, writing, or acling) 
required by thefe ftatutes to evidence the fame niuft bs fpe- 
cially laid in the indiftment, and proved upon the evidence; 
thus in Grants cafe and Burtons cate the confpiring to fetch 
arms at the houles therein nientiond was an overt-ail pro- 
ving this confpiracy to levy v/an , 

4. lliat a levying of war with all the circumftances ima- 
ginable to give it that denomination, as cum vex/His explica- 
tis, cum multhudine gentium armatarum ^ modo guerrino ar- 
raiat\ yet if it be upon a mere private quarrel between pri-. 
vate, tho great perfons, or to throw down the incloiures of 
fuch a manor or park) where the party tho without title 
claims a common, or upon difpute concerning the propriety 
of liberties or franchifes, this, tho it be in the manner of it 
a levying of war, yet it is not a levying of war againft the 
kins, tho bloodlhed or burning of houfes eniue in that at- 
tempt, but is a great riot, for which the oftenders ought to 
be fined and imprifoned ; and if any be killed by the rioters 
in the riot, it may be murder in the aiHiilant. 

This was the cafe of the earls of Gloucefter and Hereford 
anno 20 E. i. tho before the ilatute of 25 £. 3. and the ie- 
^ eral great riots above-mentiond, to which we ma}' add Rot. 
Pari. 50 E. 3. n. 140, 1^4. 1 1 H. ^. n. ^6, ^-j. 13 H. 4. 
». 14. iZ H. 6. n. 30. 

5i An a£lual levying of war therefore againft the king to 
make a treafon, for which the offender may be indi£led upon 
this claufe of the ilatute for levying of war againil the king, 
confifts of two principal parts or ingredients, vItj i . It mull 
be a levying of war. 2. It muft be a levying of war againft 
the king. 

6. \Vhat ftiall be faid a levying of war Is partly a queftion 
of fail, for it is not every unlawful or riotous aflembly oi 
many perfons to do an unlawful ail, tho de faSio they com- 
mit the ail they intend, that makes a levying of war, for 

Q_ q then 



1^0 Hijioria Placitorum Corona. 

then every riot would be treafon, and all the a£ls againil 
riotous and unlaAvilil affemblies, as i 3 H 4. cap. 7. 2 R 5. 
cap. 8. ^ H.6. cap. 14. and many more (h) had been vain 
and needlefs ; but it muft be luch an aflembly as carries with 
it jpeciem belli, as if they ride or march vexilis explicatis, or 
if they be formed into companies, or furniihed with military 
officers, or if they are armed with military weapons, as fwords, 
guns, bills, halberds, pikes, and are fo circumilanced, that 
it may be reafonably concluded they are in a pofture of war^ 
which circumftances are fo various, that it is hard to define 
them all particularly. 

Only the general exprellion in all the indi£lments of this 
nature, that I have feen, are more guerrino arraiati, and fome- 
times other particulars added as the fail will bear, as cim 
vexillis explicatis, cum armis defenfivis i5f offenjivis, cum tympa- 
nis isf tubis : but altho it be a queftion of faft, whether war 
be levied or confpired to be levied, which depends upon evi- 
dence, yet fome overt-a£l: muft be Ihewn in the indictment, 
upon which the court may judge ; and this is ufually modo 
guerrino arraiati, or armati; or confpiring to get arms to arm 
themfelves. 

And therefore in the cafes of Burton and Gram before-men- 
tiond, who were indifted and convi£led upon the ftatute of 
1 3 £//^. cap. I . for confpiring to levy war for pulling down 
incloiures, i5fc. there is not only a confpiracy to do the thing, 
but alio to gain arms and weapons at the lord Norris's houle, 
and elfewhere to arm themfelves for that attempt. 

And the reaion hereof feems to be, becaufe, when an af- 
fembly of people thus arm themfelves, it is a plain evidence, 
that they mean to defend themfelves, and make good their 
attempts by a military force, and to refill and fubdue all 
power, that lliall be ufed to fupprefs them ; and befides the 
very ufe of weapons by fuch an alTembly without the king's 
licence, unlefs in fome lawful and fpecial cafes, carries a ter- 
ror with it, and a prefumption of warlike force, and there- 
fore under a diftind and fpecial reftraint by the ftatute of 
I Wejlmmfl. 2, 

(i) See 3 t? 4 I^4iv. VI. c(jf. J. 1 3r^r. cc^. iz. i Ceo. I. ca/>. 5, 



Hijioria Placitorum Corona, 191 

Weflminfl. 2. (c), and the ftatute (^) of 7 £. i. de defenjione 
portandi anna. 

7. Whether the bare aflembling of an enormous multitude 
for doing of thefe unlawful a^ls without any weapons, or be- 
ing more guerrino arraiatiy efpecially in cafe oi interpretative 
or conltruftive levying of war, be a fufficient overt-a6l to 
make a levying of war within this a£l:, eipecially if they 
commit fome of thefe a6ls themfelves, is very coniiderable 
and feems to me doubtful, t. Bscaufe I have not known 
any fuch cale ruled. 2. Becaufe the a6ls of 3 i?* 4 Ed. 6, 
cap. •). and i Mar. cap. 12. (which muft be intended of fuch 
unarmed afTemblies) makes it in fome cafes felony, in fome 
cafes only miidemeanor. 3. Becaufe it is very difficult to 
determine what that number mull be, that muft make trea- 
fon, and lefs than which muft be only a riot ; this therefore 
iliould be well conlidered, and the dire£lion oi the ftatute of 
25 £. 3. to expe£l the declaration of parliament in like cafes 
is a fafe dire£lion, and fo much the rather, becaufe the fta- 
tutes of E. 6. and queen Marj}! feem to look the other way (e), 
to which may be added the great riots committed by the fb- 
refters and IVel/h upon the dragmen of Severn, hewing all their 
boats to pieces, and drowning the bargemen in a warlike po- 
fture. Rot. Pari. 8 R 6. w. 30, 45. ^H.6.n.-^'J. upon which 
the ftatute of 9 H. 6. cap. 5. was made : I forbear therefore 
any opinion herein. 

8. But whether the alTembly were greater or lefs, or armed 
or not armed, yet if the defign were dire£lly againft the 
king, as to do him bodrly harm, to imprifon, to reftrain him, 
or to offer any force or violence to him, it will be treafon 
within the firft daufe of compafting the king's death, and 
this aflembling and confulting or pra£lifing together to this 
purpofe, tho of but two or three, will be an ov^ert-a61: to 
prove it; therefore all the queftion will be only touching 

inter- 

(c) I dont find any thing to this pur- go armed by night or by day. See Co.T.C. 

pofc in the (tatute of lVeft7}iinfl. 2. So /. 158 £5^ iiJo. F. N. 'Ji. f. 552. 
fuppofc the Itatute here meant is the (d) Or rather proclamarion : fee the 

ftatute of Nortbamptcn z E. 9. cap. 3. beginning of this chapter, 
whereby it is prohibited that any one (s) As dot;; aifo x Geo. I. cap. 5, 
Ijri^SS force in affrav of the people, or 



192. Hijloria Placitorum Cor once. 

interpretative or conftru6liv^e levying of war, whereof here- 
after. 

9. If there be war levied as is above declared, vi'Zi. an af- 
fembly more guerrino arraiati, and fo in the pofture of war 
for any treafonable attempt ; this is bellum levatum, tho not 
helium percujjtim ; and thus far touching the le\'ying of w^ar, 
as in relation to the manner of it. 

10. But befides the clrcumllances requlfite to denominate 
a levying of war in relpe£l of the manner of It, there is alfo 
requilite to make a treafon w^ithln this claufe, that it be a le- 
vying of war againft the king, which is the fcope, end and 
termination thereof, for, as hath been faid, there may be a le- 
vying of war between private perfons upon private quarrels, 
which is not a leA^ylng of war againft the king, and fo not 
treafon \\athin this claufe of this a£l. 

I I . A levying of war againft the king therefore is of two 
kinds, either exprefty and direftly, or by way of interpreta- 
tion, conftru6lion or expofitlon of this a£l : the former is^ 
when a war is levied againft the perfon of the king, or againft 
his general, or army by him appointed, or to do the king any 
bodily harm, or to imprllon him, or to reftrain him of his 
liberty, or to get him into their power, or to enforce him to 
put away his minifters, or to depofc him j many inftances of 
this kind may be given, luch as was in truth the riding of 
the earl of Ejex into London armed ivith fwords and piltols, 
his follicitin^ of the citizens to "o with him to court to re- 
move from the queen her minifters and counieJlors, his for- 
tifying of his houie againft the queen's officers, which were 
in truth a levying of war, tho his indiftment was upon the 
firft claoie of compaffing the queen's death, which was more 
clearly included within thefe aclions. 

I 2. Conftru£lIve or interpretative levying of war is not fo 
much againft the king's perfon, as againft his government : 
if men aflemble together more guerrino to kill one of his ma- 
jefty's privy council, this hath been ruled to be levying of 
war againft the king. P. 16 Car. i. Cro. 583. Benfied^s cafe 
before cited, and accordingly was the refolutlon of the houie 
of lords 17 R. 2. Tnlbois cafe above-mentiond. 

I So 



Hijtoria PI act tor urn Corona. 1^5 

* I ■ — '■- — - — — — . . — ■ —■ - .. — — . — — 

So in the cafe mentiond by r^jy lord Coke in the time of 
H.8. Co.?. C. p. 10. levying war againft the ftatute o^ Labour- 
ers and to inhance fervants wages wa?, a levying of war a- 
gainft the king; • and altho levying of war to demolifh fome 
particular incloiures is nor a levying of war againft the kin^^ 
Co. P. C. p. 9. yet if it be to alter religion eftabliflied by law, 
or to go from town to town generally to caft down intlofures, 
or to deliver generally out of priion perfons lawfully impri- 
foned, this hath been held to be levying of war againil the 
king within this ail, and the confpiring to levy war for thofe 
purpofes treafon within that claufe of the a£l; of lyEli^. 
tap. I . as was refolved in Burtons cafe and Grant\ cafe above- 
inentiond ; and the like reiolution was in the cafe of the ap- 
prentices that affenibled more guerrino to pull down bawdy- 
houieSi 

It is confidcrable how thefe refolutions ftand with the 
judgment of parliament in 3 i?' 4 Ed. 6. cap. i 2. which makes 
ipecial pro-\'ifions to make affemblies above twelve to alter the 
laws and ftatutes of the kingdom, or the religion eftabliflied 
by law, or if above forty aflemble for pulling down in- 
clofures, burning of houfes, or ftacks of corn, treafon, if 
they departed not to their homes within an hour after pro- 
clamation, or after proclamation put any of thefe defigns in 
pradlice, which is neverthelefs reduced to felony within clergy 
by the ftatute of i Mar. fejj". 2. cap. i 2. Thefe offenfes be- 
ing the fam^e with thofe adjudged treafon in Burtons cafe and 
dome others before cited, why was it thought necelTary for 
an aft of parliament 3^4 Ed. 6. to make it treafon under 
certaifi qualifications, and why reduced to felony within cler- 
gy by the ftatute of i Mar. cap. i 2. and the ftatute of 3 isf 
4 E. 6. repealed ? It leems that altho the unlawful ends of 
theie affemblies thus punilhed by 3 <y 4 Ed. 6. and i Mar. 
were much the fame with thole ot" Burton and Grant and o* 
thers, that were adjudged treafon, yet the difference between 
the cafes ft:ood not in that, but in the manner of their af- 
fembly ; thofe that were adjudged treafons in Burtons and 
Grant's cafe were, becaufe it was a confpiracy to arm them- 
ielves and levy a war more guerrino. 

R 1: But 



15*4 Hi/lor i a Placitorum Coronae, 

j — _ — _ ~ — , — — — -» 

But thofe, that were thijp heightened to treafon by 3 <^ 4 
E. 6. and reduced to felony by i Mar. were not intended of 
fuch, as were more guerrino dndiati, nor a levying of war, 
rho their multitudes were often great, and tho they did put 
in lire the things they confpired to efteft, and fo were but 
great riots and not levying war within this claufe of 25 £. 5. 
and' therefore thofe a6l:s intii^lcd a ne\V and farther punilli- 
rnent on them. 

■ III. En fon realme : hitherto it hath been faid what is a le- 
vying of war; we are now to confider the place, En fon 
realm. 

The realm of England comprehends the narrow feas, arid 
therefore if a war be levied upon thofe leas, as if any of the 
kind's fubje£ls hoftjly invade any of the king's Ihips, (which 
are fo many royal caftles) this is a levying of war within his 
realm, for the narrow feas are of the ligeance of the crown 
cf England : vide Seldeni Mare claufum. 

And this may be tried in the county next adjacent to the 
coaft by an indi£lment taken by the jurors for that county 
before fpecial commiilioners of oyer and terminer^ de quo vide 
infra, and in the chapter of piracy : vide $ R. 2. Trial 54. 

It is true, before the itatute of 28//. 8. cap. i $. thofe trea- 
fons were ufually inquired and tried by fpecial commiffion, 
wherein the admiral and his lieutenant were named, as like- 
wife other felonies committed upon the fea. 

But divers inftances were in the time of £. 5. whereby 
fuch ofFenfes upon the fea were punilhed as treafon Or felony 
in the king's bench, ^o Ajf. z$. A Norman captain of a fhip 
robs the king's lubje6ls upon the fea, he being taken was 
hanged as a felon, but the Englifl) that allifted him were 
drawn and hanged as traitors ; and by the ilatute of 2 8 H. 8. 
cap. I 5. there is a dire^ion of a fpecial commiffion to try 
them in fuch counties or places as ihall be alhgned by fuch 
commiffion according to the method of trials of fuch oflfen* 
fes at the common law, but before that ftatute they might 
be tried by fpecial commiffion at the common law, and ac- 
cording to the courfe of the common law ; but of this alibi 
in tra^am de Admiralitate. 
■r..^ i . . For 



Hijtoria Placitorum Corona. 199 

•i— ' ' ■ ■ 

For treafons and other capital oftenles in Scotland there is 
a provifion made by the ftatute of 4 Jac. cap. i . and 7 Jac» 
cap. 1. 

Ireland, tho part of the dominions of the crown of Eng- 
land, yet is no part of the realm of England, nor infra qua-*, 
tuor maria, as hath been ruled temp. E. i . Morrice Horvard's 
cafe : tl^e like is to be faid for Scotland even while it was un- 
der the power of the crown of England, as it was in fome 
times of f. r. and fome part of the time of £.3.8 Rich. 2. 
Continual claim 1 3. 

For Ireland hath the fame laws for treafon that England, 
tho it hath fome more ; yet for a levying war, or other trea- 
fon in Ireland the oft'cnder may be tried here in England by 
the ftatute of 55 H. 8, cap. 2. for treafons done our of the 
realm, as was reiolved in the cafe of 0-Rork, -H". 3 3 Elii^. (*) 
and after that in Sir John Perrot's cafe (f), Co. P. C. p.ii. 7 Co. 
Rep. talvins caie, 23.^. 

In the cafe of the lord Macguire (g) an Iri/h peer, who 
was indi61:ed in Middlefex for high treafon for levying war 
againft the king in Ireland, he pleaded to the indiflment, that 
he was one of the peers and lords of parliament in Ireland, and 
demanded judgment, if he fhould be arraigned in England for 
a treafon committed in Ireland, whereby he fhould lofe the 
benefit of trial by his peers ; but it was refolved, i. That 
for a treafon in Ireland a man may be tried here in England 
by the ft:atute of 3 5 H. 8. for it is a treafon committed out of 
the realm. 2. That sXxho Macguire, if tried in Ireland ioi his 
treafon, fhould have had his trial by his peers, as one of the 
lords in parliament, which he cannot have here, but mull 
be tried by a common jury, yet that altered not the cafe j he 
was therefore put upon his trial by a Middlefex jury, and 
was convifted and had judo;ment, and was executed. H. 20 
Car. I. B.R. fo that the opinion 20 Eli^. Dy. 360. b. was ru- 
led no law : vide Co. Litt. z6i. 

And 

(*3 Ca?nd. Eliz. f. 4j8. (f) 'See his trial in State Tr. Vol I. /. i8i. {g) State 
Tr. f^l. I. /. 5)a8. 



1^6 Hijhrla Placitoriim Coroine, 

And the fame that is faid of Ireland may be faid in all 
particulars of the ille of Man^ J^^'j^y-i Guernfey, Sark and A!" 
dcrney, which are parcel of the dominions of the crown of 
England, but not within the reahu of England as to this pur- 
pole concerning trealon ; yet they have ipecial laws of their 
own applicable to criminals and jurifdi£lion for their trials ; 
as touchincr rreaion committed in Wales before the ftatute of 
26 H. 8. cap. 6. no treafon-, murder, or felony committed in 
Wabs was inquirable or triable before commilhoners of oyer 
and terminer, or in the king's bench in England, but before 
juftices or commiffioners affigned by the king in thofe counties 
of Wales where the fa£l was committed. P. 2 H. 4. Rot. 1 2. 
Salof : " Johannes Kynalfon indi£iatus fuit qmd ipfe con- 
" Jcntiens fuit ad faljam ilf proditiojam infurre^ionem Oweyn 
" Glyndour ^ aliorum Wallicorum, ^ fciens de toto propjjito 
" eonmdem, qui proditiofe combujferunt villas de Glyndour Dyn- 
" by, ilfc. i!f quod proditiofe mifit Johannem jiUum fuum bene 
" armatum ilf arraiatum pro guerre, i^ Willielmum Hunte fa- 
*^' gitt avium ad pr<€diElum Oweyn i^ exercitum Wallicorum, 
" ijc. dicit quod pr^diB^c vilhe, in quibus fupponitur proditiones 
" prtiditlas jadas fuijfe, funt infra terram Walli'x ^ ex- 
" tra corpus com Salop' iff legem terrx Anglirc, imde non inten- 
*' dit quod dominus rex de proditionibus pr^di6lis in hoc cafit 
ipfum impetire velit, feu ipfum ponere veiit inde refponfurum, 
ilf quia pknaYie iff cenitudinaliter teftifcatum efl, qmd pr^- 
diB^c -vill.e funt infra terram Wallix iff extra corpus comitatus 
Salop' iff legem terr^ Angli^t, isf Thomas Covele attornatus 
ipfus regis coram ipfo rege inde examinatus hoc non dedicit, iff 
fic jufticiarii ad inquirendum de proditionibus pr<€diBis infra 
Walliam fa^is virtute commiffionis pr^d/d.e inquirere mimmc 
" pjtuerunt, nee proditiones pr^edid^ fc in terra Wiilliiu favt^ per 
" legem terr^ Anglian triari nee terminari pojfmit, confideratum 
" efl, quad quoad prxdiBas proditiones prxdiSlus Johannes Kynii- 
" lion eat inde quietus, iffcf But it is true by the ftatute 
o£ 26H/d. cap.6. counterfeiting of coin, walhing, clipping or 
miniihing of the fame, felonies, murders, wilful burnings cf 
houfes, manflaughters, robberies, burglaries, rapes, and accel- 
5 faries 



.i 
il 
a 



Hijloria Placitorum Corona. i«;7 

faries of the fame and other offenfes felonloufly done in 
"Wdes {h\ or any lordlKlp marcher may be inquired of, heard 
and determined before the juftices of goal-deUvery and of the 
^eace and every of them in the next adjacent county : this 
a£l is confirmed by the great ftatute of Wales 34 <^ 3 5 H. 2. 
ca^. 26. which fettles the grand feflions and juftices thereof, 
and gives the juftices of the grand fellions power to hold all 
manner of pleas of the crown, and to hear and determine all 
treafons, felonies, isfc. within the precinft of their ccmmif- 
jions, as fully as the court of king's bench may do in their 
pkces within the realm of England j fo that as to thofe of- 
fenfes enumerated in the ftatute of 26 H. 8. the juftices of 
gaol-delivery in the adjacent counties, vi^. Ghucejier, Here 
ford, Salop and Wigorn, had thereby a concurrent jurifdi£lion 
with the juftices of the grand fellion (i). 

But whether the ftatute of 26 H. 8. extended to treafon 
for corapailmg the king's death or levying of war (A), or whe- 
ther the lame remained only triable by the juftices of the 
grand fellions, feems doubtful, and the rather, becaufe that 
ftatute is not conftrued by equity, and therefore it extends 
not to an appeal of murder in an adjacent county, and fo it 
was adjudged Hil. 7 Car. B. R. Sently and Price (I) ; but at 
this day 16 H.^. cap. 6. ftands repealed by 1 ^ 2 Ph. ^ M. 
cap. 1 o. as to the trials of treafon (m). 

It >is true, that in other criminal caufes, that are not capi- 
tal, as in cales of indi£lments of riots, they may be removed 
by certiorari into the king's bench, and when ifllie is joined 
they may be tried in the next EnglifJ) county, T. 1 6 Jac. Sir 
John Carervs cale (n) and divers others, as well as in a quo 

S f minus 

(h) For tliis a£l extends to all the an- as the king fTiall appoint, in like manner, 

'tient counties oi Widcs, as well as the as if the fads had been committed in fuch 

lordfhips marchers ; and fo it was re- fliircs. 

folved in Jlthoe''s cafe for a murder in (I) Cro. Car. 247. W. ^oiies 2J5. 

'Pcmbrckejhire. T. 9 Geo. I. ^.R. (m) The i £«? 2 Th. £5f M. reducing 

(i) I Mod. 64, 6%. all trials for treafon to the order and 

{k) It fhould feem that it did not, and courfc of the common law is a virtual 

that was one reafon of making the fta- repeal of 26 H. 8. and by the fame rea- 

rute ot 52 //. S. cap. 4. whereby all trca- fon of 52 H. 8. alfo as to treafon. 

fons or raifprifions of treafons committed (n) Cro. Jac. 484. 2 Rcl. 28. j KoU 

in IValci may be prcfenred and tried in Ahr. 554. 

fucii fhircs and before fuch commiffioners 



1^8 Hijloria Placitoriim Corome, 



minus, which is at the king's fult : but whether a certiorari 
lies into Wales upon an indicSment of treafon or felony hath 
been doubted M. 9 Car. B. R. Chedkys cafe (0) : it feems a cer- 
tiorari may ilTue for a fpecial purpofcj as to qualh the indi61:* 
ment for infufficiency or to plead his pardon, but not as to 
trial of the fa£l {p\ but it Ihall be fent down by mittimus 
according to the ftatute of 6 H.Z. cap. 6. becaufe it is in a 
manner eflential for felony or treafon to be tried in the proper 
county, unlefs where a ftatute particularly enables it, which it 
did in the cafe oi i6 H.Z. only whilft it was in force, where 
the indi£lment as well as the trial is in the adjacent county. 

But certainly Wales is within the kingdom of England (q), 
and therefore not within the ftatute of 35 H. 8. cap. 2. for 
trial of foreign treafons. 

If a felony or treafon be committed in Durham, a certiorari 
lies to remove it into the king's bench out of Durham direfted 
to the juftices of peace, oyer and terminer, or gaol-delivery 
there ; for lince the ftatute of 27 //. 8. cap. 24. they are all 
made by the king's commlffion, and fo the proceedings before 
them are his own fult, and thus it was doi-se in Ruttabieh 
cafe (r) upon debate ; but if the party plead not guilty it 
lliali be fent down thither to be' tried, as was done in that 
cafe. T. 1655. They of Durham claim a privilege not to be 
fworn out of the precln£l: of the county palatine. Vide the 
ftatutes of 2 H. 5. cap. y. 9 H. 5. cap. 7. 1 i H. 7. cap. 9. 
for treafons and felonies in Tindal and HexamjJnre. 

And thus far concerning treafon in levying of war agalnft 
the king. 

4 CHAP. 

(0) Cro. Car. 551. cafe. Latch n. 

(f) But yet it has been Aaac in felony (q) 2 Rol. i8- 

i& to the trial of tKe faifi, as in the cafe (r) Vide infra /. 4(^7. and Tart II, 

of Morris, i I'ea. 513, 146. Herbert'^ f. 212. 



I 



Hiftoria Placitorum Corona. 199 



CHAP. XV. 

Concerning treafon in adhering to the king's 
enemies mthin the land or ^without. 



THE words of the ftatute of 25 £. 3. go on, vi-zi. Ou 
foit aidant al enemies no/ire dit feigneur le roy en fon roy" 
alms donant a eiix ayd ou comfort en fon royalme on per ailliors. 

I. Therefore we iliall inquire what lliall be faid enemies 
of the king : thofe that raife war againft the king may be of 
two kinds, fubjefts or foreigners, the former are not properly 
enemies but rebels or traitors, the latter are thofe, that come 
properly under the name of enemies. 

This gives us occalion to confider fomewhat of the nature 
of war and peace. 

The power of making war or peace is intdr jura fummi im- 
peril, and in England is lodged fingly in the king, tho it ever 
fucceeds belt when done by parliamentary advice. 

Peace is of two kinds, 7;/^. i . Politive or contracted. 2. Such 
a peace, as is only a negation or abfence of war: that 
peace, which I call pofitive, is fuch as arifeth by contrails, 
capitulations, leagues, or truces between princes or ftates, that 
have jura fummi imperii, and is of two kinds : i . Temporary, 
which is properly a truce, which is a celTation from war al- 
ready begun, and then the term being elapfed the princes or 
ftates are ipfo fa6io in the former ftate ot war, unlefs it be 
protra£led by new capitulations, or be otherwife provided in 
the inftrument or contra6l of the truce. 2. Perpetual, fine 
termino or indefinite, which regularly continues according to 
the tenor or conditions of the agreement, until fome new war 
be raifed between the princes or ftates upon fome emergent 
injury fuppoled to be done by the one party or the other ; 
and this is properly called a league fadus, and makes the prin- 
ces and ftates confocderati, and tho this may be varioully di- 

veiiified 



l6o Hifloria PlacitGYum CoroHiC. 

verfified according to the capitulations, conditions and quali- 
ficatior.s of inch leagues, yet they are ordinarily of thefe 
kinds: i. Leasrues ofienfive and defenlive, which oblige 
the princes not only to mutual defenfe, but alfo to be ailift- 
in^ to each other in their military a^^grefles upon others, and 
makes the enemies of one in efte6l the common enemies of 
both. 2. Defenfive, but not otfeniive, obliging each to fuc- 
cour and defend the other in cafes of invaiion or war by o- 
ther princes. 3. Leagues oi limple amity, whereby the one 
contrails not to invade, injure or offend the other, which 
regularly includes alfo liberty of mutual commerce and trade, 
and fafeguard of merchants and traders in either's dominions, 
tho this may be diverlified according to fuch contrails as are 
made in fuch leagues ; and therefore in the league between 
king James of England and the king of Spain there was a ta- 
cit exception on the part of the Spaniard by the wary pen- 
ning of the articles, whereby the freedom of our trade into 
the weftern plantations of the king of Spain hath been fup- 
pofed by the Spaniard to be reftrained. 

2. A peace, which is only a negation or abfence of war, 
is that which I call a negative peace, becaufe it is only an ab- 
fence or negation of war, there intervenins; no league nor ar- 
ticles of peace, nor yet any denunciation of war, for it is re- 
gularly true, iibi be Hum non efi, pax ej}, tho neither prince is 
under any capitulation or contrail ; for there are divers prin- 
ces in the world, that never capitulated one with another, and 
yet there is no If ate of war between them ; and therefore the 
war by the Spaniards upon the Indians, tho under pretenfe of 
religion, without any juif provocation hath been held injuri- 
ous' and an unjuft aggrellion, tho there intervened no former 
articles of peace between them. 

War was antiently of two kinds, helhm fokmne rel non j(j^ 
lemne : a folemn war among the Romans had many circum- 
ilances attending it (a), and was not prefently undertaken up- 
on an injury received witiiout iliele folemn circumftances. 
2 I. Cla- 

(^) Sec the manner of it tlefcribocl l>y it appears, that the thirty-three days of 
^)ic!nf. Ha!. Lil'Al. .-/^tV. Lil.'K.W. tlilation intervened between the demand- 
ii'J-. 4. am*. LiV. Lil. I. $. 51. whciel-y ing iep.ir.aion and the indiiSion. 



Hijloria Placitorum Coron£. i6i 



I . Clarigittio (If) or demanding reparation for the injuries re- 
ceived. 2. I'hat being not done there followed indiilion or 
denunciation of war. 3. Dilation or a fpace of thirty-three 
days before a£lual hoftility was ufed ; but moil times necel- 
iity and politic coniiderations both among theni and other 
nations did difpenfe with thefe folemnities, which were found 
oftentimes too cumberfome and inconvenient, eipecially where 
the delays might occaiion lurprizal or irreparable damage to 
the common wealtli, as where the adverfe party made preparji- 
tions, which, if not iuddenly repreiledj might prove more 
dangerous and irrciiftible. 

But thele iolemn denunciations of war had place only In 
oftenfive or Invafix^e wars, and even then had many excep- 
tions. 

1 . If a war be a£lua]Iy bet\\'een two princes or ftates, and 
a temporary truce be made as for a year or tv^'o, that term 
being elapfed they are in a il:ate of \\^ar without any denun- 
ciation, for they are in the former condition, wherein they 
were before the truce made. 

2. In cafe a forein prince in peace violate that peace and 
becomes the aggreflor, or Invades the other, tho without any 
denunciation, the prince that is upon his defenfe vras not 
bound, neither was it neceffary for him to make a folemn 
denunciation or proclamation of war, for this folemnity of 
denunciation was thought only requifite on the part of the 
aggreflor. 

3. If after reparation of injuries fought inftead of repa- 
ration of the former new are committed by the adverid 
prince, as killing of an embafiador, contemptuous reje£lion of 
all reparation or mediation touching it, great provifions of 
hoilility, or the like, there this denunciation or dilation was 
not requifite in the aggreflor ; but when all is done, fiipreme 
princes or Hates take themfelves to be judges of public inju- 
ries, and of the manner, means and leafons for their repa- 
rations, and what they judge fafefl: and molf for their advan- 
tage is molf commonly done in thefe cafes, and they feldoni 
Want fair declarations to juflify themfelves therein. 

Tt And 

(f^) See y/;;;. Z/i. XXII. caf. z. 



l6z Hi ft or i a Placiionim CoroUi^. 



And therefore whether thefc handfome methods he ob- 
fcrved or not, yet if de fa5io there be a war between princes, 
they and their fuhjefts are in a ftate of hoftility, and they 
lire in the condition of enemies (hofies) to each other ; but 
now for the moft part thefe ahtient iolemnities are antiqua- 
ted, I come therefore to the pra61ice of our own country 
and modern arms, and what we may obierve from our own 
books, hillory and monuments. 

We may obierve in the wars we have had withforein countries^ 
that they have been of two kinds, t;/;?;.. fpccial and general ; fpecial 
kinds of war are that, wJiich we ufuidly call marque or reprifal, 
and thefe ao;ain of two kinds, i. Particular, granted to fome 
particular perlons upon particular occaiions to right them- 
fetves, for which vide ftatute ^H. <^. cap. 7. but this is not the 
pr(^per place to treat touching it. 2. General marque or re- 
prifal, which tho it hath the effe£l: of a war, yet it is 
not a regular war, and it differs in thefe two inftances : 
1. Regularly it is not lawful for any perfon by aggreffion to 
take the Ihip or goods of the adverfe party, unleis he hath a 
commilTion from the king, the admiral, or thole that are fpe- 
cially appointed thereunto. 2. It doth not make the two 
nations in a perfe£l iliate of hoftility between them, tho they 
mutually take one from another, as enemies, and many times 
in procefs of tim^e thefe general reprifals gfow into a very 
formed war : and this was the conditi(m of the war between 
us and the Dutch 22 February anno 166^. the firft beginning 
w^hereof was by that aQ: of council, which inftituted only a 
kind of univerial reprifd, and there were particular reafons 
of ftate for it ; but in procefs of time it grew into a very 
war, and that without any war folemnly denounced ; and 
therefore by the ftatute of 17 Car. 2. cap. 5. Doleman and c- 
thers, that were in Holland, were declared to have trait- 
roufty adhered to the king's enemies, and were attainted of 
treafon, unlefs they rendred themfelves by a day certain, 
and all others, that ferved the Ifates of the united provinces 
during the continuance of the war, foldiers or feamen, by 
fea or land, and not returning by a time certain, were at- 
tainted of treafon j and this had all the cffcfts of war and 
3 hoftility ; 



Hifioria Placitoriim Corona. 163 

hoftility : the goods of the Engli/h taken by the Dutch and 
brought intra pr^fidid the property was wholly changed, and, 
tho retaken again, Ihould not be reftored again to the fiHt 
owner, according as in captures by enemies, 7 £. 4. 1 4. 22 
jE. 5. 16. and fo it was pra£lifed during that war. 

A general war is of two kinds : i . Bcllum fokmniter demm- 
tiatimj or helium non fokmniter demmtiatum, the ft)rmer forc 
of war is, when war is folemnly declared or proclaimed by 
our king againft another prince or ftate ; thus after the pacifi- 
cation betv^'een the king and the Dutch at Breda, upon new 
injuries done to us by the Dutch the king by his printed de- 
claration 167 I. declared war againft them ; and this is the 
moft formal folemnity of a war, that is now in life. 

A war that is nm jolemniter denuntiatum is, when two na- 
tions flip fuddenly into a war without any folemnity, and 
this" ordinarily happeneth among us, the firlf Dutch war was 
a real war, and yet it began barely upon general letters of 
marque : again, if a forein prince invades our coafts, or fets 
upon the king's navy at fea, hereupon a real, tho not a fo- 
lemn war may and hath formerly arifen, and therefore to 
prove a nation to be in enmity to England, or to prove a per- 
lon to be an alien enemy there is no neceflity of Ihowing anv 
war proclaimed, but it may be averred, and fo put upon trial 
by the country, whether there was a War or not 5 and there- 
fore P. 5 1 EliTi. in jullice Ovpen% reports (f), in an a£lion 
of debt the defendant pleaded, that the plaintift v,'as an alien 
born in Gaunt under the obedience of the king of Spain, 
enemy of the queen, the plea was ruled good, tho he Ifiewed 
not, that any war was proclaimed between the two realms ; 
and according is the pleading 7 £. 4. i 3. Rafiefs Entries, Tref' 
pafs per alien, (d) 

And in very deed there was a ftate of war between the 
crowns of England and Spain^ and the Spaniards were a^lual 
enemies, efpecially after, the attempt of im^alion in 88. by 
the Spanijh Armada, and yet there was no war declared or 
proclaimed between the two crowns, as appears by Camden 

M 

(c) Otxcii 45. (d) Rajt. Entr. f. 6oy.d. 251. h: 



164 Hifloria Placitorum Corouie. 



fill? anno 31. {e). ibidcin p. 404. i^f ibidem p. 466. (/). fo that 
a Hate of war may be between two kingdoms without any 
proclamation or indi£lion thereof or other matter of record 
to prove it. 

And therefore in the cafe in qiieftion touching treafon it 
fliall upon the trial be inquired by the jury, whether the 
perfon, to whom the party indifted adhered, were an enemy 
or not, and in order to that, whether there were a war be- 
tween the king of England and that other prince, whereunto 
the party adheres, this is purely a queftion of fa61: and tri- 
able by the jury, and accordingly is the book i^ E. 4. 6: and 
the reafon is plain, becaufe it may fall out, that tho there were 
a league between the king of England jind a forein princcy 
yet the war may be begun by the forein prince : again, fup- 
poi'e we, that the king of England and the king of France be 
in league, and no breach thereof between the two kings, yet- 
if a fubje£l born of the king of France makes war upon thv^ 
king of England, a iubje^l of the king of England adhering 
to him is a traitor within this law, and yet tlie Frenchman^' 
that made the war, is not a traitor but an enemy, and Ihall 
be dealt with as an enemy by martial law, if taken : this 
was the cafe of the duke of Norfolk adhering to the lord He- 
rife a fubjedl of the king of Scots in amity with queen Eli^a- 
bcth^ that made an a£lual invafion upon England without the 
king's commilhon. M. 1 3 <^ i 4 £//^. Co. P. C. p. 11. Camd. 
Eli^. fiih anno i 57 i. (^). 14 Eli^. p. 175. and the cafe of 
Perkin Warbeck a Frenchman, 7 Co. Rep. Calvin s cafe (/;). 6 Dy. 
145.^. <S/;fr/v's cafe (/) ; fo that an enemy extends farther 
than a king or ffate in enmity, namely an alien coming into 
England in hcftility. 

II. In the next place I fhall confider what (hall be faid a 
perfon adhering, and alio \\diat iliall be adhering. 

If a forein prince be in aclual war againft the king of Eng' 

landf any fubje£l: of that prince under his protedion is pre- 

fumed to be adhering to him, but he is not a perfon w ithin 

3 thi.^ 

{e) viz. J 588. (I) 7 Co. 6. k 

(f) fiih anno 1 592. {i) 7 Co. Caiviu's cafe 6. a* 

(g) And Mofuh afi»oi$i2. in />rhici^io. 



Hijloria Placitonim Cor once. 169 

this a£l, for if he be taken, he fnall be dealt: with as an ene- 
niy, vi^. he lliall be raniomed, and his goods within this 
reahn ieifed to the iiie of the king. When king jjIm was df- 
veited of th.e duchy of Normdndy by the king of France, and 
thereupon the Normans forlook the alligeance of the king oi 
F.ngland, v/hich was due to him, as duke oi" Normandy, all 
the lands of the 'Normans in England were feiTed into the 
king's hands, and thence grew firlt the efcheat de tefris No?-* 
maymorum intnt'iondi pr<ercgativa regis {k) cap. 12. and theftyle 
of fuch forfeiture was uiuaily, quia recejjlt a jervitio noflro ^ 
adhxjlt inimicis noftris in Normannia, Clauj. 6 John m. 1 9. pro 
Euflachia uxore Lurce jit Joliannis, Clauf. 8 John m. 5. pro 
Abbatc Cluniacenfi : fee the reafon thereof before cap. 10, they 
were adfdcra utriufqiie regis. 

If there be war between the king of England and the king 
of France, thofe EngliJJrmen, that live in France before the 
war and continue there alter, are not iimply upon that ac- 
count adherents to the king's enemies, unlefs they aftually 
ailift him in his wars, or at leaft refufe to return upon privy 
feal, or upon proclamation and notice thereof into England ; 
and this rcfufal, tho it is an evidence of adherence, ieems not 
to be limply in itlelf an adherence : this appears plainly by 
the ftatute of Magna Carta cap. 3 o. 

If a fubje£l: of a forein prince hath lived here in England 
under the protection of the king of England, and fo conti- 
nues after a war proclaimed, and partakes oi all the benefits 
of a fubjecl, and yet fecretly pra6tiieth with the king of 
France, and alTifts him before he hath left: this kingdom j or 
openly renounced his fubjeftion to the crown of England, this 
man ieems to be an adherent within this adl, and comimits 
treafon thereby : tamen quaere, vide Dy. 144. <?. Sberleys cale ; 
and the like law feems to be of an enemy coming hither and 
flaying here under the king's letters of iafe condu£l : quaere, 
vide ftatute 18 H. 6. cap. 4. 20 H 6. cap. i. 

If there be a war between the king ot England and France, 
and then a temporary truce is made, and within the time of 
that truce an Englijhman goes into France, and ifays there, 

U u and 

(k) 17 p. 2. 






l66 Hi/lor i a Placitorum Corona. 

and returns before the truce expired, this is not an adherence 
to an enemy within this ftatute, Clauf. 7 -E. 3. part i. >». 9. 
pro Johanne Pqynter, who had an amoveas mamis cum exhibits, 
his lands having been ielfed for that caufe : but this record 
implies, that if during his ftay (it was in Scotland) he had 
confederated or confpired with the enemy or afl^fted them in 
order to their further hoftility, this might have been an ad- 
herence : nota^ the reafon, " ^lia prxdiBus Johannes tempore 
treugarum inter patrem noflrum i^ Robertum de Bruys ivit 
in Scotiam per p-^ceptum Andrea: de Harcla ad piStandum 
quandam imaginem, quo tempore bene licuit unicidque de An- 
glia intrare in Scotiam per licentiam i5f literas de condu6iu 
cuftodis Marchi^, ^ quod idem Johannes habuit tales literas 
Andrex de Harcla, & ibidem talitcr moram fecit per unum 
annum abfquc co, quod aliquo tempore Scotts pr^aiSlis fuit ad- 
lurenSf iff quod idem Johannes rediit in Angliam durantibus 
*' treugis pr<edidisy iff Jemper haSienus fuit ad pacem nofiram 
" iff patris noflrif Nota^ this Andrerv Harcla having been 
created earl of Carlijle was by an extrajudicial military fen- 
tence firit degraded, and then had judgment of high treafon 
given againll him. H. i2 E. 2, Rot. 54 in dorfo rex. {/) 

If 

(/) This fentcnce of (degradation, as " tener fcs dreytoures Sc Ics droitz de 

<vell as the judgment for high treafon, " fa corounc & de foun poeplc, countre 

were pronounced at CaiiiJIc, before Sir " fcs cncmys de touts partz, & nome- 

Rjl/^h SnJJcT, Sir Jol-n'Tccchc, Sir ^ohu " ment countre Rcheret de Sriis & fes 

/IcV/ipam and Gccff'rey le Scrap, who, " autre* cncmys ^'£/cofr, vous fiftcounte 

together with the earl of AV;;; the king's " de Cardoil, & de fa meyn vous fcynt 

brother and l/obn /ie Hc^ftiages, were " \_ceynt'] d'Efpee, & vous dona fee de 

fpecialiy conftituted by letters patents, " la counte, chafteux, villes, terres & 

f/i'fticiarii ad degradavdum Andream " tenemcntz, pur voftrc eftat meynte- 

de Harcla comhem Carlioli, inimicmi "■ ner, come counte ; & aprcs ceo qe 

^ proditorc?n regis ^ reg?!i fui, qucm " vous avictz tiel honour, oc bien f-iit 

iin'per in comitem gladio cinxcrc.t, o cd " refceu de noilrc dit felgnour, fi eftes 

\iidiciiint dc ipfo filler dcgrc.dr.riouc, iin- " alez \_alicz] au dit Robert de Sriis^ 

iiucitid, £5? Jcditione priedi£iis fromin- " treitroufemcnt , faufcmcfit & mal- 

ciandinn Sff rcddcndura j and the form " veifemenr, par cfcrit & par fcrcmenr, 

of the faid judgment to be pronounced " pur mcyntencr le dit Rohcr: d'eitre 

was at the fame time fent to the laid " roi d'Ejicce^ proprcmcnt en la rcverfe 

jullices in a certain fchcdule, /«Z'/f//(7/7- " de la cntencioun le roi, pur quele it 

gilli regis, the which judgment was ae- " vous fit counte ; par quel agarde cefle 

cordingly pronounced in the following " courr, qe vous foietz dcgradee, & qc 

words: "Pur ceo qe noftre feignnr le " vous pcrdetz noun de counte pur vous 

" roi pur le graunt bien valu & loialte, " iSc pur vos hcires a toutz iours, & qc 

" qu'il enrendlt davour trouve en vous " vous foietz deceynt del cfpcye & qc 

" .'ijidrcu dc Jliircia fuT s'w\c7 &mc\n- *' vos cfporuns d'orrez foient coupes dc 

a " talouns ; 



Hi /lor i a Placitorum Corona. 167 

II' the king of England and the king of France be in ami* 
ty, yet if a iiibie£l of the kinjr of England iolicits by letters 
the king of France to invade this reahii, this is high treafon : 
it was the cale of cardinal Poole, w ho wrote a book to that 
piirpoie to Charles the emperor. Co. P. C. p. 1 4. It is certainly 
an o\'ert-acl: to prove treaion in compafling the king's death, 
but it ieems not an overt-a£l to convidf him of adhering to 
the king's enemies, for at the time of this acl done the em- 
peror was not an enemy. Co. P. C. p. 1 4. 

If an Englijhman during war between the king of England 
and France be taken by the French, and there fwear feaky to 
the king of France, if it be done voluntarily, it is an adhe- 
ring to the king's enemies ; but if it be done for fear of his 
life, and that he returns, as foon as he niiglit, to the allige* 

ance 



talouns ; & pur ceo q^e vous Andreu, 
homme lige noftre feignour le roi, 
countre voOre hoinage, foi &; lige- 
aunce, en countre voflre feignour lige, 
eftes aliez, tretroufemcnr, faufcment 
& malveifement, a Robert de jBriis, 
enemy mortel a noftre feignour le roi 
& de foun realme & a foun poeple, 
par ferement & par efcrit, por meyn- 
tener au dlt Robert & a fes hcires 
le rolalme d'F.fioce entcrcment, a tut 
voftre force & power, countre toutes 
gentz, & qe vous nomerctz fis hom- 
ines, & le dit Robert autre fis, Ics 
queux dufze ordeynercinr, de toutes 
les grofles befoignes de roialme iVEn- 
gleterre & d'Efcoce, & qe lour or- 
deinement fe tendroit tn touz poynz, 
& fi nul, de quel ellat ou condlciou.i 
qu'il fu{}, voufit countredire le dit or- 
dcynement en nuj poynt, qe v-'ous ove 
toute voftre force & power, [/«;] cur- 
riez feur, & en tauntc cnprciftes, 
treitroufement, faucement & malveife- 
ment d'enprendre roial power, countre 
voftre feignour lige, les piers & le 
poeple du roialme, pur eux mettre en 
fubjeftioun, & al ordinauncc de vous, 
& du dit Robert, qi eft comun enemy 
au roy & au roialme, & a cefte tre- 
foun, faufme, malveifte ik treitroufe 
aliaunce meyntenir, feiftcs le poeple 
noftre feignour le roi jurer, en attre- 
aunt le dit poeple a vous, taunt come 
en vous feuft, por meyntenir la dite 
trefon, faufme, malveifte ck tretroufc 



" aliaunce fufdites, les queux fount no- 
*' tories Si. conuz en le roialme, & no- 
" ftre feignour le roi le recorde ; par 
" quel agarde cefte court, qe por la dite 
*' trefoun foietz treynez & pendurz 
*' Sc decole, & qe voftre quer, bouels 
" & entrayles, dount les treitroufes pcn- 
" fez vindrent, ioient araceez, ars en 
" poudre, & Ic poudre ventee, & qc 
" voftre corps foit coupee en quartre 
" quarters, d'ount Tun quarter fount 
'■ D''"'] pc'ndu amount de la tour de dr- 
" doil, un autre quarter amount de li 
" tour AcNo-ve/ Clvjlel, le terce feur \c 
" pount de Everivyck & le quartre a 
*' Salopp'' & voftre telk four le pnunt de 
" Loitndrci, porenfcmplc qe autrcs n'en- 
" preignent a faire ticax rrelons a lour 
" feigneur lige, & diftum eft viceconiiti 
" Cuiiibri£ quod ficiat inde execu- 
" tioncm." 

This whole proceeding was returned 
into chancery upon a cert or art, and 
from thence fent by hilt'DHUi into the 
Ic no's bench there to be inroUcd ad per- 
pcttiam rci incinoriam j by this it ap- 
pears, that it was not a military but de- 
iigned as a judicial fentence, alrho it 
fcarcc delerves that name, being throuph- 
out irregular and illegal, tor that the 
party was not admitted to a trial, nor in- 
deed bad the commiffinncrs power to 
try, their commiftton being (jiox ad aiidi- 
cnd:irii i£i terr,iina!?d'4?n but; only ad de- 
grnd.vidiun i^ ad yyiicum reddendum 
ij pro:junciauduin. 






168 Hi/lor i a Placitorum Coron£. 

ance of the crown of England^ this is not an adherence to tlie 
king's enemies within this a6l:. Clciu^. 7 JS. 3. -part i. m. \'). 
John CuhvinA land being leifed upon this account there was 
oufler le main cum exitibiis^ " ^tia compermm efl per inquif- 
" tionem, i^c. quod Johannes ad jidem ^ pacem noftram exti- 
tit, quodqiie idem Johannes captus fuit de guerra per Scotos 
inimicos nofiros, iff in prifona in Scotia per di6los inimicos 
nofiros, ilf pro -vita jiia jahanda ad fidem diSlorum Scotorum 
per dimidium annum extitit, quodque idem Johannes poftea in 
" Angh'am rediit, i^ ad fidem ^ pacem noflram a tempore 
*' pr'CdiBo haSlenus extititf tho this was before 25 £. 3. yet 
the inilance is ufeful, becatife adhering to the king's enemies 
Was then treafon. 

If a captain or other officer, that hath the cuftody of any 
of the king's caftles or garrifons, Jhall treacheroufly by com- 
bination with the king's enemies, or by bribeiy or for reward 
deliA^er them up, this is adherence to the king's enemies. 
I'his was the cafe of William Weflon for delivering up the ca- 
flle of Oughtrewicke, and John de Gomeneys for delivering up 
the caftle of Ardes in France, both which were impeached by 
the commons, and had judgment of the lords in parliament, 
Rot. Par. I R. 2. n. 40. namely William Wcfton to be drawn 
and hanged, but execution was reipited, que le roy nefl un- 
core enforme del manner de cejl judgement : Gomeneys 'i judgment 
was thus, Les feigneurs in plein parlement rous adjudgent a la 
mort, iff pur ceo quejies gentlehome iff banneret iff aves ferve le 
aiel le roy en jes guerres, iff neftes ligc home noflre feigneur le 
roy, vous feres decode fans autre juflyce auer, but execution was 
refpited. (m) 

And note, tho the charge were treafon, and poffibly the 
proofs might probably amount to it, and Walftngham fub anno 
1 R. 1. tells us it was done by treafon ; yet the realon ex- 
preiTed in the judgment againft Weflon is only, que furrcndifls 
le dit caflle de Oughtrew'icke at enemies noflre jeigncur le roy 
avant dits fans mil durcjfc ou defalt de viBualls contre vous lige- 
ance iff cmprije : and the like reafon is expreit in the judg- 
ment i^gaintt Gomeneys^ Vous emprifls a faucment garder fans 
2 les 

(»0 Sec thcfc cafes State 7")'. Vol. I. />. 795. 



Hijloria Placitoriim Corona. idp 

les jurrendy a nully ^c. iff are vous Johan fans nul durefce on 
defalt de visuals ou de artillery ou autres chofes neceffaries pur le 
defence de dits ville i^ caflle de Ards fans commandment noflre 
feigneur le roy malement Cauets delii)ers ^ furrendres al enemies 
noflre feigneur le roy per voflre defalt demefne contre tout plain 
de droit iff reafon, iff encountre voflre emprifes fuifdits, iffc. 

The truth is, if it were delivered up by bribery or trea- 
chery, it might be treafbn, but if delivered up upon cow- 
ardice or imprudence without any treachery, tho it were an 
offenfe againft the laws of war, and the party fubje(£l: to a 
fentence of death by martial law, as it once happend in a 
cale of the like nature in the late times of trouble {n\ yet 
it is not trealon by the common law, unlefs it was done by 
treachery ; but tho this lentence W"as given in terrorem, yet 
it was not executed ; it feems to be a kind of military len- 
tence, tho 'given in parliament, like unto that of the baron 
of Grayflock governor of Berwick (o), who travelled into 
France without the king's commandment, and left the care 
of the garrifon to Robert de Ogle a valiant knight, who ufed 
all imaginable courage in defenfe thereof, but it was loft in 
the abfence of the baron of Grayflock, who was thereupon 
fentenced to death, becaufe he had undertaken that charge, 
and yet went from it without the king's command, and in 
his abfence it was loft : this alfo feems rather a fentence of 
council of war, than a judgment of high treafon ; and thus 
far touching the treafon of adhering to the king's enemies 
within the land and without. 

Touching the trial of forein treafon, vi^. adhering to the 
king's enemies, as alfo. for compaffing the king's death with- 
out the kingdom at this day, the ftatute of 3 5H.8. cap. 2. 
hath fufficiently provided for it. (p) P. i 3 Eli^. Dyeric)2, 300. 

X X Story s 

(«) This was the cafe of Col. Ficnnes, force notwithftanding i S£? 2 'Ph. ^ Mar. 
parliament governor of Srjjlol for cow- cap. 10. which reduces the methods of 
ardly furrendring the fame to the king's trial for treafon to the courfe of the corn- 
forces. See State 'Tr. Vol. 1. p. 745. mon law, becaufe it is not introduftive 
fo) See thiscafei'ri^fe7>. ^0/. I./.797. of a new law, but only fettles a point, 
(p) This ftatute gives power to try that was before doubtful at common . 
fuch treafons in the king's bench or by law ; and it was accordingly fo refolved 
commiffioners in any county appointed in Storie s cafe, 2)y€r 298. I, Co. ?. C, 
by the commiflion, and continues in p. 24. 



170 Hi/lor i a Placitorum Corouie. 



Story s cafe ; but at common law he might have been indl£led 
in any county of England, and efpecially w^here the offender 's 
lands lie, if he have any. $ R. z. Trial 54. 

And it feems, if the adhering to the king's enemies were 
upon the narrow feas, this is an adherence to the king's ene- 
mies within the reahii, and tho it be triable by a fpeci::! 
commiffion at tliis day grounded upon the itatute of 28 H 2. 
yet at common law it might have been indifted and tried in 
any adjacent county by a Ipecial commiilion cf oyer and ter- 
miner, for the narrow feas are within the king's alligeance, 
and part of the realm of England. 6 R. 5. Prote^lion 46. 
Co. Lit. 2 60, 




CHAP. XVI. 

CdnccYning treason in counterfeiting the 
great feal or privy feal. 



J7IRST, I fiiall upon this article confider how the common 
law flood before this flatute, and what kind of offenfe 
this was antiently, and how puniilied. Secondly, I iliall con- 
fider how the law hath been taken touching this offenfe lince 
the ftatute, and how puniilied. 

I. The great feal of England is the great inftrument, 
whereby the king diipenieth the great a6ls of his govern- 
ment and the adminiftration of juifice ; under this feal the 
great commiffions to his juftices and others are paffed ; ori* 
ginal Y/rits and mandates, and thole proceffes, tiiat iifue out 
of chancery, all the king's grants and charters of lands, li- 
berties^, franchifes, honours, pardons are palled under this 
feal. 

4 There 



Hifloria Placitoriim Cor once. 171 

There is or llioulJ be always a memorandum made upon the 
cloie rolls of the breakinji of the old feal and making and 
delivering of the new ; and by the very delivery of this feal 
the office ot keeper of the great feal is conftitiited, and rnofl: 
ordinarily is to the fame perfon, that is lord chancellor: fome^ 
times the cuftody of the great feal is in one perfon, and the 
oflice of lord chancellor In another ; but always a memoran' 
dum of the delivery thereof entered upon the dole rolls. 
The great feal confilts ordinarily of two imprelTions, the one 
the very great feal itlelf with the king's effigies inftamped on 
it, the other is commonly called pes figilU-, and fometimes in 
our old books called k targe, which is the impreflion of the 
king's arms in the figure of a target, which is ufed in mat- 
ters of fmaller moment as certificates, which are ufually 
pleaded jub pede Jigilli. 

Antiently, when the king travelled into Normandy^ Ftif^ 
or other lorein kingdoms upon occasion of war or the like, 
there were two great feals, one went along with the king, the 
other w^as left w^ith the ciiftos regni, or lometimes with the 
chancellor, if he went not along with the kin^, for the dif- 
patch of the affairs of the kingdom, and then the king 
upon his return lometimes redelivered the old feal and took 
in the new, Clauf. loE. 3. part 2. m. 26. dorf. Clauf. 19 £. 3. 
part 2. m. 2-^ i^ 10. dorf. Clauf. 20 E. 3. part 2. m. i2,. dorf. 
ilf frequentijfime alibi in dorfo clailforum. 

The privy leal is ordinarily a w^arrant for the palling of 
things under the great feal, lometimes a warrant to ilTue 
treafure, to make allowances, ^c. vide 1 1 Co. Rep. 92. the 
earl of Devonfljires cafe ; and this feal is ordinarily in the 
cullody of the lord keeper of the privy feal or commillion- 
ers thereunto appointed. 

Bciides thefe leals of greater moment there are other fealo 
of the king, as the privy fignet, the particular feals of the fe- 
veral courts, that of the king's bench and common pleas in cu- 
ftody of the chief juflices of either court, or their clerks ap- 
pointed for that purpole, the leal of the exchequer in the cu- 
ftody of the chancellor of the exchequer, the leal of the du- 
chy of Lancafier in the cuftody of the chancellor of ,the dii- 

^ chy 



172. Hi/lor i a Placitorum Corona. 

chy, the feal of the county palatine of Lancafler in the ciiftody 
of the chancellor of the county palatine, which are fome- 
times in the lame perfon, the leals of county palatine of 
Chefier, of the feveral juftices of alTife, oyer and terminer and 
gaol-delivery, the king's feal of ftatutes and recognizances, 
the feal of the cocket j and for the moft part thefe feals are 
delivered by the king's order hgnified fometimes by his privy 
ligneti, fometimes by his fecretaries, but antiently the moil 
of them were delivered by the king in perfon to the feve- 
ral perfons, that had the cuil:ody thereof, and a memorandum 
made thereof upon the back of the clofe roll. ClauJ. 45 
£.3. ?». 18. dorf. 

The antient manner of delivery of the feal for ftatutes 
merchant, and probably for other leals of like nature was by 
the king in peribn as before, or by a clofe writ and memoran- 
dum under the great feal. Tl i 9 E. i . it Is commanded, that 
for the future it ihould be delivered under the feal of the 
chancellor of the exchequer. 

I'he manner antiently of delivering the judicial feals of 
the king's bench and common pleas was by the king or chan- 
cellor to the chief juftices refpeftively, and in like manner 
the judicial feal of the exchequer to the chancellor of the ex- 
chequer ; thefe were ordinarily in two pieces, Clauf. 43 E. 3. 
^.18. dorf. The profits of the feals belonged to the king, ex- 
cept the feventh penny, which is the fee of either chief ju- 
ftice {a) ', and when the king formed out the profits of the 

feal 



{a) The antient fee to the chief ju- writs ad fcEiam regis, ^c. to pay no 

fiice was one penny for every writ, as fees, Et que les ji/Jlices freignent 

appears from two of the records here vn denier du hrief for lour fealx en 

quoted by our author, viz. 20 E. 5. manere come ad cjle vfe cu temp's 

iior. 87. 21 £. 3. iioMi5. the firft of ^aj/e. 

thefe Is a grant to Waller of 7ar- The latter is a grant of the king 

raouth of the profits of the feals for (upon his having refumed the feals on 

ten years, in confideration that the faid account of fome mifdemeanor committed 

JValter ihoMli pay to the clerk of the hy Walter o( Tarwon:h J to ^obade'Padc- 

hanaper for the king's ufe 250 marcs e- I'liry and Henry dc SidihulU reddendo 

very year, and fhould likewife difcharge iudc rcgi dc claro per annum ditccntas £S? 

a debt of the king's of 2000/. by the quater viginii viarcas per inaum clerici 

■yearly payment of 200/. the fx'id Wal- hanapcrii, nrrits ad fe El am regis, i^c. 

ter to be allowed every year cents folds to pay no fees, ^ qiwd ji/Jlitiarii noftri 

tor his expenfes in fealing writs j all in placeis litis percipiani unum demniim 

Jf^ de 



Hifloria Placitorum Corouie. 175 



feal of either court, fometimes one piece remaind with the 
chief JLiftice or his deputy, the other piece remaind with the 
farmer or his deputy ; thefe profits of the feals of the courts 
of the king's bench and common pleas were let for looo /. 
■per annum yb) by the king. M. i8 £. 3. Rot. 3 %. Rex. P. 20 
E. 3. Rot. 87. r. 22 £. 3. Rot. 1 1 5. M. 2 3 £. 3. Rot. 31. co- 
ram rege. (c) 

Many times the juftices ifilied procefs under their own 
feals unto the fheriffs : this was complained of inter pethiones 

Y y ' parlia- 

dc Ircvi fro JJgiUis. fuis, front ibidem juftitiario] aftid Weftm" qmddam Jigii- 

lum domiiii regis, fro Irevibtn fr^diciis 
ill banco dotnini regis Jigillavdu, c/ijus 
tinam fartan idera Willielmus Scot lile- 
ravit ciiidam Ropero de Mcrlawe, defW' 
taio di^i Matthei Canaccon jurato, a- 
liam vera far tern qiifdem figiili fenes fe 
iffum retincndo ; Et diElum eft eidein 
Rogero, quud officio fradi^lo bene i3 fi- 
deliter intcndat fecundtmi formam 1$ 
conditioncra iw brevi fradi^o contentas 
fcricnlo quod inaiTdbit, S^c. 

Altho the confidcration is here faid to 
he the dilcharging a debt of ten thou- 
fand pounds, (which probably led our 
author to think the profits were let at 
looo/. per annum, fo that in ten years 
time that debt might be difcharged) yet 
the annual produce of the feals being no 
more than 500 /. one hundred whereof 
was to be paid yearly for the king's ufe, 
it fecms to me pretty plain, that the king's 
debt, which he undertook to pay, could be 
only r':foandnotf£'«thourand pounds; what 
ftrengthens this obfervation is, that the 
indentures of agreement being in Frevch, 
it was very eafy to miflake deux for dix. 

(c) This was a grant of the feals of 
the king's bench and common pleas to 
Jluthoiiy Sache for feven years in reccm- 
fcnfationem feftingejztarum niarcarinn 
(due to him on an annuity formerly 
granted) at the rate oi i-ool. fer An- 
nian for the two firlt years of the faid 
term, and 200 vcaxY&fer annum for the 
five remaining years, the faid Anthony 
to pay to the clerk of the hanaper for 
the king's ufeonc [?-:fo] hundred marks 
fer amumi for the two firft years, and 
one hundred marks fer annum for the 
five remaining years j and the king there- 
upon fends his writ dc admittendo frde- 
ditlum Antonium vel ejus attorn ad of- 
ficiumfnediElum mcdo debito jacienduii: 5 
end he was admitted accordingly. 



hduienus eft iijitatnra : it ihould feem 
therefore, as if the perfon employed by 
our author to conTult the record miflook 
the iivrd vn in the firft grant for a 7m- 
moral vn, and that this was the occafion 
of his making the feventh penny to be 
the fee of the chief juftice. 

(/■) Thefe profits were not let for 
above three or four hundred pounds 
fer anmiJii, as appears not only from 
the above-mentioned cafes, (the high- 
eft of which is root, and 250 marks 
fer anninn^ which is no more than 
'i,6&L \%s. ^d.) but alfo from the 18 
1'. 5. Rot. 55. where the king fignifies 
by writ 20 O£lob. to his juftices, that 
he had granted to Matthew Canaceon 
and his affigns tottim froficuu/n ad fe dc 
Jigillis omniura Ircvitim judicialium de 
banco fno £5? banco commtmi exciintium 
fcrtinens, tifque ad terminiim decern a:i- 
noriim^ in valorem trefcentartun librarum 
fer annum, dc quibus ifji fuiicnt ad 
of us regis cuftodi hanaferii canccllariiS 
qtiolibet diEioriim decera annortim cen- 
tum libras de exitibus brevium fvcediElo- 
rum, SJf refervabunt fenes fe t.otum fro- 
ficuiim rejidiiiira dc brevibus fnfraditiis 
durante di^io tcrmino in recomfenfa- 
tionem dccem [duo] millitim librarnra 
fterlingortim, de quibus fr£di5lus Mat- 
theus in debit is^ in quibus rex certisfer- 
fonis in ducatu Aquitanie tenebatur, af 
fumfftt rcgem acquietare i3 exonerare j 
ita femfer quod brevia adfe^am £jf fro 
commodo regis fer vifum £5? teftimonium il- 
lorum, qttifrorcgefrofequuntur, scbrevia 
fro hcminibus de curiis regis, ^ faitfcri- 
bus hominibusfa£ia ^facienda abfquc ali ■ 
quo in de five n do deliherentur, front hac- 
reniis in cancel/aria fieri confucvit. Et 
fciendum quod eodem 20 die 06iob. Ro- 
bertus de Sadyngton Car.ccllar domir.i 
regis liler.^vit Wiilielmo Scot ^capitrli 



174 Hijloria Placitorum Coronas. 

parliamenti 12 £, 3. w. 6. by the chancellor of the exchequer 
and clerk of the hanaper, as a derogation to the king's proEr, 
and contrary to the duty of the llieriff, who by his oath is 
bound to receive no writs, but under the king's feal : the an- 
fwer is, Soit briefe mnnct a jujiic de common banc contenayit 
teffe6i de petition, iff quits pur lour advifement facent tiel remedy 
en lour place, come ils verront, qe foit a faire a profit du roy. 

And it feems moft ufual, that lince that time judicial pro- 
cefs not only in thofe greater courts, but in moft other courts 
iffued under the king's feals thereunto deputed, yet juftlces 
of affife and gaol-delivery fometimcs make their precepts un- 
der their own feals; vide Judicial Regifler 34, 35,41,43, 
73, 84. -vide pur ceo Rot. Pari. i^E. 3. w. 25. a petition 
that judicial procefs out of the king's bench and common 
pleas might iffue under the feal of the chief juftlces, as Is 
ufed in eyre, affifes, ^ oyer i^ terminer, but denied. 

But to return to the bufinefs of the great and privy 

feal. 

The great feal \\'hlch Matthew Paris {d) Jub anno 125c. well 
calls (clavis regni) hath been with great care and folemnity 
kept and ufed, and therefore antiently, when there was any 
change made of tlie great ieal, there was not only a memo' 
randum made thereof in dorfo claujorum cancellari^e, and a 
public notification thereof in the court of chancery, but 
public proclamation was made thereof. Clauf. i E. 3. part 2. 
m. II. dorfo. 

Yet in cafes of fpeed and necelTity, and fometlmes for di- 
ftindlion's fake the king uled a private feal for fuch occa- 
fions, which Were to be pafied under the great feal. 

King John died his fon king Henry III. being but about ten 
years old, from the beginning of his reign until 3 H. 3. all 
grants paffed under the feal of the earl marihal, that was his 
proteSor or guardian, but in the king's name, vi^. In cups 
rei tefiimonium has literas noflras figillo comitis marifcalii reSlo- 
ris nofiri i^ regni noftri figillatas, quia nondum figlllum habui- 
mus, vobis mittimus, tefie Willielmo comite marijcailo. This 
feal he continued till the third year of his reign, Clauf. 3 H. 3. 
I m. Id. 



Hijtoria PI act tor urn Cor once. 179 

m. 1 4. hie incepit figillmn regis currere : and in the iame third 
year, vi^z^. Pat. 3 H. 3 . m.6. there was a provilion made in 
parliament for the ditcrimination of thofe charters, tliat palled 
during his minority and after his Rill age, in thefe words : 
" Henriciis Dei gratid, i>e. Sciatis quod proviium eft per 
" commune conlilium regni noftri, quod nuJlaj carta!, nullx 
" YitcYX patentes de conlirmatione, alienatione, venditione 
" vel donatione, feu de aliqua re, qu?j cedere poilit in perpe- 
'' tuitatem, iigillentur magno ligillo noftro ufque ad jctateni 
" noftram completam, Tefie, ^c" and after the letting down 
of divers witnelles are theie words, " Proviium eft etiam per 
" commime confilium regni noftri & coram omnibus prac- 
" di£lis, quod fi aliqux carts rel aliqua; literal patentes fafta; 
" fecundum aliquam pra;di61:arum formarum figillata; inveni- 
" antur prxdifto ligilio, irritx habeantur & inanes, teft:ibus 
" pr?edi(3:is." 

It appears Claiij. 2o£. 2. m. 3. dorj. in the beginning of 

that miierable tragedy, that the 25th of OBoher 20 £. 3. the 

king Hying from his wife and fon, who was afterwards king, 

a great number of lords and others chofe Edrvard the king's 

eldeft fon to be cuflos regni, fuppolmg the king to be out of 

the kingdom; at that time the chancellor together with the 

great leal were with the king, and the new cufios regni ea, 

qus juris fuerant, jub Jigillo fuo privato in cuflodia domini Rc- 

berti de Wyvill clerici Jui exiflent, eo quod aliud figilhim pro 

diBo regimine ad time non haUiit, exercerc incepit., poflmodum 

vero 2 o die Novemb. proximi fequent\ captis inimicis pr<tdiBis 

^ dicio rege in regnum revertente, upon a meflliage lent to 

the king for the feal the king thereupon fent the great feal 

to his wife and fon, ict non folum ea, qu^ pro jure i^ pace ej- 

fent facienda, fed etiam qiu gratis forent, fieri facer em ; the 

feal was brought to them 26 Novemb. and the morrow beins 

the feaft of St. Andrerv it was opened by the queen and her 

fon, and delivered to the billiop of Nortvich : and it is to be 

oblervxd, that a parliament was fummoned between the 26th 

q£ OBober and the 2 5 th of November in the name of the king. 

but to be held before the queen and the cuftos regni in qtiin 

dena fan6li Andrew, which fummons muft needs be under his 

own 



&' 



176 Hifloria Placitoriim Cor on ^e. 



own private feal ; but the 3d oi December the great feal be- 
ing then in their power it was prorogued unto the morrow 
of Epiphany : the firft fummons is recited in the writ of pro- 
rogation^ but it is not entred of record, for it was a halty 
confufed bufinefs, neither had they the rolls of the chancery 
in their hands to make any entry of it j and if they had had 
them, yet it would have been irregular, and not have amended 
the matter : all that I fliall farther add concerning thefe two 
inftances is, that neither the feal of William earl Marjhal ufed 
by Henry III. nor the private feal of prince Edward were great 
feals within this ftatute, whereof the counterfeiting might be 
high treafon. 

When the king dies, tho the office of keeper of the great 
feal expires, as well as all commillions to llierifFs and juftices, 
yet the great feal of the laft king continues the great feal of 
England, till another be made and delivered. 

King Edward III. began his reign the 25 th oi January, he 
made the billiop of Ely his chancellor the 28 th of January y 
it was not poffible a new feal could be made in that time, 
and belides the feal was not altered till the 3d oi Odober eodem 
mno, as appears by the proclamation thereof, Clauj. i £. 3. 
parti, m.ii. dorf. fo that all that while the old feal with the old 
infcription ftood ; the method of which alteration was thus : 
I'he king by his proclamation bearing tefie 3 OSlob. anno \ . di- 
retled to all the chief ilierifl^s of England, lignifying, that he 
had made a new great feal, and that it was to take place 
from the fourth day of that month of OSlober, fend? them 
the impreffion of the new feal in wax, commands them 
to publiili it, and that after the fourth day of OBober they 
lliould give faith to it, and receive no writs but under the 
new feal after that day. 

The fourth of OSlober being Sunday the bifhop of Ely chan- 
cellor produceth the new feal, declares the king's pleafure, 
that it ihould be from thenceforth ufed ; the monday after the 
old feal is brolcen pr^cipiente rege, and the pieces delivered to 
the Spigurnel. (e) 

I Again, 

{/) The Spigvrnel was an officer, whofe place was to feal the king',e writs. Carnhd. 
Hem a I II Sf />. 126. 



Hijioria Placitorum Corona. 177 

Again, king Henry Y. died 30 Jug lift i atino fui feptimo^ a par- 
liament was ilimmoned by Writ bearing tefle 29 Septemb. anno 
primo H. 6. to be held die lun4 ante feftutH Martini^ a com- 
niHlion ilTued to the duke of Gloucefler bearing tefte 6 NovemL 
1 H.6. ad inchoandum parliamenttim, i^c. and the bifhop of 
Durham chancellor to Henry V. delivered up the feal to the 
king 28 Septemb. The new feal with the new infcription wa« 
in that parliament ordered to be made, the billiop of Dur- 
ham was made chancellor by commiilion under the great feal 
dated \6 Novemb. the new feal was not made till fome time 
after, therefore the old feal of Henry V. was iifed in the fum- 
mons of the parliament and all the tranfa£lions till the new 
feal was delivered : indeed when Edrvard IV. alTumed the 
crown, the feal of Henry VI. was not iiied, for it could not 
be had, and if it could, yet Henry VI. being declared an u- 
furper, there was no reafon for Edward IV. to give any coun- 
tenance to that ufurpation by uling of his feal, who was de- 
clared an ufurper and attainted of treafon. 

So that (except the laft cafe of an ufurper) till a new great 
feal be made, the old feal, being delivered to the keeper and 
ufed and employed as the great feal, is the great feal of Eng- 
land within this ftatute, notwithftanding the variance in the 
infcription, portraiture, and other fubllantials from the Hate 
of the prefent governor. 

But then, what ftiall we fay of the old feal, when the 
new feal is made and delivered of record to the keeper, and 
the old feal broken ? To this I fay, i . It was once the great 
feal of England, and therefore the counterfeiting of that feal 
and applying it to an~ inftrument of that date, wherein the 
old feal ftood, or to an inftrument without date, is high trea- 
fon ; nay, if in the time of Edward IV. a man ihould coun- 
terfeit the great feal of Henry VI. and apply it to a patent 
■or other inftrument of his time, it had been high treafon, 
tho Henry VI. were an ufurper, and his feal in the time of 
Edward IV. of no value. 9 £. 4. ( f) 

Z z But 

(f) This is S^got's cafe, 9 £ 4. i. ^. " of E. 4. for treafon done againft H.i. 
where it is faid by the couiifei, " That " in compaffing his death, ^c. 
" a man fiiall be arraigned in the timG 



178 Hijtoria Ptacitorum Corona, 

But what if in the cafe before inilanced in after the 4th 
of 08lober i £. 3. a man had forged a grant by king Ed' 
ward III. {g\ bearing tefle 2 E. 3. when the old feal was out 
of date, or in the time of Edward IV. had forged a grant by 
Edrvard IV. and counterfeited the feal of Henry VI. thereun- 
to ; this feems not to be a counterfeiting of the great feal of 
England^ if the difference appear very legible and confpicu- 
ous, for at the time, whereunto it relates, there w^as no fuch 
great feal in being • but if the difference between the feals be 
fuch as be not evident to the view of every man's eye, it may 
be more doubtful ; fed vide de hoc infra. 

This ftatute fpeaks only of the great feal, and privy feal, 
and therefore no other feals w^ere within this ftatute. 

But by the ftatute of i Mar. fejf. 2. cap. 6. " If any do 
" falfly forge or counterfeit the queen's lign manual, privy 
" lignet or privy feal, every fuch oflenfe lliall be high trea- 
" fon, and the offenders herein, their counfellors, procurers, 
*' aiders and abettors being convi£l according to the courfe of 
*' law Ihall be adjudged traitors againft the queen, her heirs 
" and iucceflors." But now what lliall be faid concerning 
thefe other feals above-mentiond, as the feals for the writs 
of the courts of king's bench, common pleas, and exchequer, 
the feal for ifatute-merchant, i^c. 

By the old law, it feems that counterfeiting any of the 
king's feals, wherewith writs w^ere fealed, was petit trea- 
fon, tho it came under the name of crimen falfi. Glan' 
vd, that wa'ote in Henry II.'s time. Lib. XIV. cap. 7. " Di- 
" ftinguendum eft, utrum fuit carta regia an privata, quia 
fi carta regia, tunc is, qui fuper hoc conv^incatur (fcilicet 
de faHificationej condemnandus eft tanquam de crimine 
\x{x majeftatis ; li vero ftierit carta privata, tunc cum con- 
vi£l:o mitius agendum eft, licut in c^cteris minoribus crimi- 
nibus falli, in quorum judiciis confiftit eorum condemna- 
tlo in membrorum lolummodo amiflione, pro regia tamen 
" "\'oiuntate." Bra^lon, that wrote in the time of Henry III. 
Lib. III. cap. 3. de crimine Ufcs majefiatis, §. z. " Eft & aliud 
2 " genus 

(g) This muft be underflcod under the old feal. 



iC 

u 



Hifioria Placitoriim Cor on ^e, 179 



" genus cri minis I'ccfx majeftatis, quod inter gravlora nu- 
" meratur, quia ultimum inducit fupplicium & mortis occa- 
*' lionem, lei licet crimen falfi in quadam fui fpscie, &" quod 
" tangit coronam iplius regis, Ut li aliquis accuiatus fuerit 
" vel convi£lus, quod iigillum domini regis falfaverit confio-- 
*' nando inde cartas vel brevia, vel 11 cartas confecerit & bre* 
" via & iigna appofuerit adulterina, quo cafu ii quis inde 
" inveniatur culpabilis vel feilitus, li warrantum non habue- 
*' rit, pro voluntate regis judicium fuftinebit, &", li \\^arrantum 
" habuerit (Sc warrantizaverit, libcrabitur & tencbitur warran- 
" tus ;" Fleta^ that wrote in the time of£. i. Lib. I. cap. 22. 
de crimine falfij tells us, " Crimen falli dicitur, cum quis accufa-' 
" tus fuerit, quod figillum regis, vel appellatus, quod ligiJIuni 
*' domini fui, de cujus familia I'uerit, falfaverit &: brevia inde 
" conlignaverit, vel cartam aliquam vel literam ad exhzereda-' 
tionem domini vel alterius damnum lie liglllaverit, in quibus 
calibus ii quis inde convi6lus fuerit, detraftari meruit &: fufpen- 
di. §. 3. Item crimen fall! dicitur, cum quis illicitus, cui non 
fuerit ad hoc data authoritas, de ligillo regis rapto vel in- 
vento brevia cartafve conlignaverit : " Briton, that wrote in 
the time alfo of JE. i. cap. 4. " Soit Inquife de touts ceux, qui 
afcun fauiin averont fait a nolfre feale, come de ceux qui 
per engin ont noftre feale pendu a afcun charter fauns con- 
ge, ou que noftre feale ount emble ou robbe, ou autrc- 
" ment troue eient enfele brefs fauns autre au£lorite, and 
cap. 8. Graund trefon eft a faufer noftre feal, Scc." 
Upon thefe old books there is no difterence made touching 
the king's feals, but generally the crime of treafon was fup- 
pofed in counterfeiting any of them, but moft certainly the 
ftatute of 25 E. 3. extends only to the great and privy feal, 
as to the point of treafon ; but then whether that, which was 
a treafon before, remain not ftill a felony at the common lavv^ 
(for all treafons include felony. 5 H. 7. 10. Co. P. C. p. 1 5.) is 
conliderable. 

M. z H. 4. B.R. Rot. 2. as I take it, Vifum efi curtly quod 
contrafa^io figilli regis pro recognitionibus efl niji fe Ionia (h): but 

tho 

(^) There is no fuch entry to be found the plea or crown-roll of that term, but 
eithsr cm the IcJond or Icvcnth roll of the words cited by our author arc in the 

abllraft 



u 

ii 



i( 



l8o Hijtoria Placitorum Cor once. 

tho they held it not treafon, they do not poiitively affirm it 
felony iince the ftatute of 25 £. 3. but only non efl nifi felo' 
nia, villi, that at molt it can be only felony. 

P. 6 E. 1. B. R. Rot. 2. Effex. Johannes d£ Bofco per cur cfi 
culpabilis pro falfoate, eo quod cepit cukellum fuum ^ calefacic' 
bat eum apud ignem ^ aperwt breve regis isf impofuit aliud 
fiBum, dicit quod efl clericus, isf traditur ordinario Weftm' (J), 
Smile P. i^E.i.B.R. Rot. 2 5 Rex. {k) 



It 



abfiradl of the rolls of the king's hench 
of Mich, z H. 4. Rot. 7. but upon what 
authority is uncertain, being in a (Affe- 
rent and more modern hand than that of 
Mr. Jgard, who in the reign of James I. 
abbreviated the king's bench rolls. 

(/) The record of this cafe is thus, 
*' yo/'W/Zt'So/t-o was arraigned profalfitate 
*' figilli & brevis domini regis, eo quod 
" ivit cum brevi \_decancellaria\ ad ignem 
*' & caTefaciebat cultellum, &cumillo cul- 
** telloceramdi^i brevis findebat,&amo- 
" to illo brevi impof.iit aliud breve \this 
" '•.vcii a Superfedcas to the Jlocriff of Ef- 
" lex] Si illud in eadem cera inclufit & 
" tradidit fervienti fuo illud breve vice- 
" comiti EJfex dcfcrendum, qui qui- 
" dem fervicns in prsfentia prardidli 
" Johannh dt 'Bofco liberavit eidem 
" vicccomiti falfum breve pradiflum : 
•■' Dicit quod clcricus ell : " upon which 
he was claimed by the abbot of Jl'cft- 
jiiiufler his ordinary ; " Sed ut fciatur 
" pro quail eidem ordinario liberari de- 
" beat," a jury ex officio pafs upon him, 
who find him guilty " de prffdifla fal- 
" fitate, findenilo cum cultcllo fuo prae- 
" dicto ceram pra;didam 6v imponcndo 
" fallum breve pra:didum, ficut ei fupe- 
" rius iniponitur: Ideo inde ad judici- 
" um, &c. & interim cnmmittitur ma- 
" icfch', ^c." there is no judgment en- 
tred upon the roll ; fo that from this re- 
cord, which Is not In ufual form, it is 
doubtful whether he had his clergy or 
not, tho trom a jury paffing upon him 
ex ifflcio it is moft probable he had, but 
yet it Ihould feem from the cafe of 
Gerffrcy de Huntyiiton &; Richard de 
Clyuron, which was but fix years after- 
uards, as if this ofFcnfc was not fo much 
as felony ; they were charged " pro 
*•' comrafaftione figilli regis 5c carts fub 
" figlllo regis fie contrafacto, ' which was 



found }n their curtody ; afterwards they 
plead the king's pardon " pro omnibus 
" feloniis & tranfgreflionibus, & quia 
" infpefta carta prxdifla, quae dicitur 
efle contrafafla, comperttim eft, quod 
carta non eft de forma in cancellaria 
regis ufitata, infpefta ctiam cer?. ejuf- 
dem cartie fufpeftte compertum eft, 
quod cera ilia imprefla eft figlllo re- 
" gis cancellar', fed prius appofita fult 
" cuidam alteri liters regis patent!, 
" qtiod citins did fotejl tranfgreffio^ 
" qiiam contrafaEiio. Et dominus rex 
" pcrdonavit eis fcflam pacis fua;, quai 
" ad ipfum pertincf, de omnlmodis fe- 

" lonils & tranfgreffionibus, &c. 

jam per tres annos in prifona regis fte- 
terint occafione prasdifta & non alia 

caufa, dldlum eft quod delibe- 

ret COS, &c. & Ipfi eant inde quieti, 
&c. Et carta ilia cancellatur in cur." 
Mich. II E. 2. S.R. Rot. 155. Heref 
from hence it appears that the judgment 
afterwardu in Leakeys cafe 4 J^ac. i. was 
agreeable to the antient refolations. 

{k) This is the cafe oi 'PhiliJ' "Bttrdeti, 
but is by no means fimilar to that of 
jfohn dc S^ofco, for this was a direct ac- 
tual counterfeiting of the great feal : 
vide infra in votii. See alfo another cafe 
to this purpofe for counterfeiting the 
privy feal. Rot. fart. 6 E.z.fart 2. i/i.iS. 
" Johu de Redyvges was arraigned and 
" tried coram fcnefcallo & marcfcallo ho- 
" Ipitii domini regis pro contrafaflione 
" privati figilli domini regis, & pro qui- 
" bufdam litteris de praedifto figillo con- 
" trofa£lis [^contrafiEto] confignatis cum 
'■ eo inventis,' and being found guilty 
had judgment, " Qiiod pro piKdi<?la fe- 
" ducione Ifeditione} fit detradus, & pro 
" manuopere cum figillo pr^dido poftea 
*' fufpenfus." vide Ry/ey's Tiacita 'Far- 
Icmentarin, /. 54.f— 545- 



Hijioria P lac it or urn Corond'. i8i 

It appears rot, whether it were a writ under the great fcai 
or a judicial writ of lome court, but wherlier it were the 
one or the other, it feems to be capital, for he had the bene- 
fit of clergy, which in thofe times was allowable in fome 
cafes of treafon ; fo that it feems a counterfeiting of any of 
the king's feals was felony at common law, but whether it 
fo continues, notvvithilanding the ftatute of 2 'j C 3. hath de- 
graded it from treafon, unlefs it be the great or privy feal, 
ihall be farther examined. 

II. Having thus confidered the feals, it remain^ to confider 
what iTiall be faid a cotmtcrf citing of the great or privy 
leal. 

A confpiracy or compafling to counterfeit the great or 
privy feal is not a counterfeiting nor trealon within this a£l:, 
for it muit be an aftiial counterfeiting. Co. P. C. p. i ^. 

A taking the great feal off from a true patent and clap- 
ping it on a forged patent in former times hath been held 
high treafon; in ^ojjf. 3 3. it is plainly held to be high trea-- 
fon, (tho my lord Coke (/) faith otherwiie) for the woman, 
that did it, could not be let to mainprife, which if it hud been 
only a great mifpriiion, Ihe had been bailable upon that in- 
diftment. (m) 

■ 2 H. 4. 2'^. which is entred H. 2. H. 4. B. R. Rot. 1 6. Midd. 
Clement Petifons cafe, the taking off the true leal from one 
patent and fixing it to a forged patent is adjudged high trea- 
fon ; yet the judgment is only quod diflrahatur ^ fiifpcndntur, 
which is the judgment in petit treafon. 

This cafe and the reporting of it is difliked by my lord 
Coke, P.C. />. I 5. {n) ; but Stamf. PL C. ^. 3. feems to agree 
with this reiolution. 

A a a But 

0) Co. 'P. C. p. 15. " qudd contrafccit magnum figillum do- 

{m) This aroument of our autlior is " mini regis faifo & malitiofe & prodi- 

vcry far fron\ being conclufive, for by " torie, & cum didlo figiUo fie contra- 

thc ftatute oilVcft?it.i, cap. 15. where " {i.Ot.0 quafdam literas, qu^ pra:fent' 

t\\c oScn^c IS open and mmifefl, (which " pra:di£t' funt confut', figilP: he pleads 

for what appears was the caic. here) the " not guilty, the jury find, quod quoad 

offender is not bailable, altho it were " contrafididnem figilli prxdi£ti idem 

only a mlfprifion. 2 Co. /;;_/?. 188, 189. " Clemats in nullo eft culpabilis, fed 

(«3 And well it might be, for that " dicunt, quod idem Cloneus falfo 6c 

cafe appears by the record to have been " dcceptorie ik in deceptionem populi da 

thus ; " Clement Teyttnjn was indiikd, " afienfu aliorum de covina fua fcribi fe- 



ci r 



) 



i82. Hiftoria Placitorum Corona, 



But the later authorities are againft it, and that it is only 
a great mifprifion and offenle, but not high trealbn, no nor 
yet felony, as it feems by the book hereafter cited. 

3 7 ff. 8. B.Trcajon :^. A chaplain taking a good feal off from 
an old patent, and fixing it to a forged difpenfation of non- 
reiidence no treafon, but only a great mifprilion punilliable 
bv fine and Impriionment. 
' H. 4 Jac. cited by lord Coke, P. C p. 1 6. Leake s cafe, who 
joined two parchments together with glew fo clofe, that it 
could not be difcerned, and put a label through both, and 
on the one a true patent granted, which paffed the feal, and 
then afterwards upon the other parchment wrote a forged 
patent, then he cut off the taie patent and publiilied the 
Other as a true patent ; this was ruled by the advice of all 
the judges, i . That this was no counterfeiting of the great 
feal, nor treafon within this aft. 2. But if it had been a 
counterfeiting of the feal, he might have been generally in- 
dialed of treafon for counterfeiting the great feal, but it w^s 
ruled to be a great mifprifion or offenle, but not high trea- 
fon ; and with this opinion agrees my lord Coke, and it is the 
fafer and latter opinion and fit to be followed. 

If the patentee of the king of lands under the great feal 
raze the name of one of the manors and make it another 
name, this is not counterfeiting of the feal nor treafon within 



2 



this 



*' cir, & finxit litcras pn-ediflas, & fuper " tioncm domini regis & popuH fui 

" litcras illas pendi fecit figillum mag- " faclae & figillatsc, una cum ufu & ex- 

" num domini regis, quod antca pende- " ercitio earundem, alta froditio funr, 

" bat fuper aliam magnam patentem do- *' confideratum eft, quod prxdiflus Oe- 

" mini regis, & figillum domini regis " mens 'Peytenyn A\^rii!n^t\xt S<. fufpen- 

" prxdiftum fubtiliter & private confui " datur." This mull be owned to be a 

" fecit fuper literas falfas prxdiflas, & very extraordinary cafe, for as lord Coke 

" ilias falias literas una cum figiHo do- juflly obferves, whatever offenfe this 

" mini regis pr3»di£to in diverfis parti- were, yet this judgment ought not to 

" b'js regni Angli£ tanquam veras lite- have been given upon this verdift, for 

" ras patentes, prout eaedem liters facl- the jury had exprelly acquitted him of 

*' unt mentionem, ufus eft 8c exercebat the offenfe charged in the indiilment ; 

*' in deceptionem domini regis & populi not to mention, that it is direflly contrary 

*' fui; propter quod pro eo, quod cu- to the cafe above-mentiond of Geoffrey 

*' ria non avifatur, quale judicium prce- de Hiintynton ■■, there is likewife another 

" diiSus Clemens in hac parte fubire irregularity in this cafe, that tho the of- 

" debeat, remittitur prifonae marefch' : fenfe was committed after the z^ E. 3. 

' *' Afterwards in the Fefter term next and is laid to be done frodiTcrii, yet it 

" following, vifo indiflamento necnon is nor laid to be contra forniam ftattiti, 

"^ veredido prsdifiis videtur curia: hie, as fince that Itatute all treafons ought 

*' quod fall;e liters prxdiila: fic indccep- to be. 



Hi /lor i a Placitorurrt Corona. 183 

this ftatute, but a great ofFenfe or rrtifprifion, for which the 
abbot of Brucr was lentenced before the king and his council, 
and the abbot delivered up the charter to be cancelled. Clau]. 
42 K. 3. /». 8. dorf. Co. P. C. p. 1 6. 

If the chancellor or keeper affix the great feal to a char- 
ter without warrant, tho this be a mifdemeanor in him, it is 
not treafon within this ftatute, tho Briton and Fleta tibi fu-^ 
pra make it treafon at common law ; and altho it lliould be 
fuppofed treafon at common law, but not comprifed within 
the ftatute, yet it is not now felony ; therefore the rule ta-* 
ken 3 H. 7. lo. that thofe treafons at common law, which 
are not within the declaration of 25 £. 3. yet remain felony, 
is not true, as might be made appear by many inftances. . 

And upon the fame account it feems, that altho by Fletd 
and Briton, if a man find cafually the great feal, and feal a 
forged charter, this was treafon at common law ; yet it is 
neither felony nor treafon at this day, for here is no coun- 
terfeiting of the great feal, it is therefore only a great mifde- 
meanor. Co. P. C. p. 1 6. 

And altho it feems by the old books above cited,, that coun- 
terfeiting of the judicial feal of the king ufed for writs was 
then treafon, yet very lately in the king's bench it was ruled 
to be no felony at this day, but only a great mifdemeanor 
puniftiable by fine and imprlfonment, or by ftanding in the 
pillory, or both, fo that the book of 3 H 7. is not in all 
points agreeable to law, for many things were treafon before 
25 JS. 3. which are thereby declared not to be treafon, and 
yet remain not felony at this day ; and the lilce for counter- 
feiting the feal of a ftatute merchant. 

If a man grave the fculpture of the great feal without 
warrant from the king, but never ufe it or apply it to feal 
any thing, this feems to be no counterfeiting of the great 
feal, tho it be with deiign and preparatory to fuch an at- 
tempt ; for tho in truth the inftrument Itfelf be the feal, as 
appears by the ufual expreffion fgillo meo figillat\ and by 
the frequent proclamations de jigillo amijfo, when either the 
king or a fubjeft loft his feal calually, yet it feems not a feal 
wittjin this ftatute till an impreihon made in \yax in tefti- 

mony 



184 Hijloria Placitorum Corona. 

' m 

mony of fome writing, no more than the forging of a ftamp 
for money is a counterfeiting of money, iinlefs it be ufed, 
tho in both cafes it is a great mifdemeanor and a great evi- 
dence to prove the offenfe committed, if any other circum- 
ftances concur to pi-ove it done. 

Al. 1 6 Jar. B. R. One counterfeited the draught of a pa- 
tent to himfelf and others to compound with alehoufe-keep- 
ers and iifurers touching their oifenies, and counterfeited the 
privy fignet to warrant the pafling of the other commiflion 
To by him drawn, and coilefted divers fums of money there- 
by, and for counterfeiting the privy lignet he was indi£l:ed of 
high treafon upon the Itatute of i Mar. It was refoh^ed, 
I . That the counterfeiting of the great feal, privy feal, fign 
manual, or privy fignet is at this day high treafon. 2. That 
the adding of the crown in the counterfeit fignet, which was 
not in the true, and the omiffion of fome words in the in- 
fcription, which were in the true fignet, and the inferting 
other words, which were not in the true, (which was done 
purpofely, that there might be a difference between the true 
iignet and the counterfeit) alter^ not the cafe, but it is high 
treafon, for the fixing of the counterfeit fignet, and thereby 
obtaining the great feal to his feigned patent, and thereby 
publifhinj^ it to be true, and colledling fums of money by it 
make it treafon ; the oflender had judgment to be drawn, 
hanged and quartered. (0) 

So that it lliould fcem, that tho there might be fo great 
a difparity between the true and coimterfeit lignet, that the 
bare affixing of fuch a feal might not be a counterfeiting 
within the ftatute ; yet if it were fo like, that it deceived 
the officers of the great feal, and was ufed to that purpofe, 
and attained its c&d:, zi:^. the affixing of the great feal to 
the forged commiflion, it was a fufficient counterfeiting to 
bring him within this law of i Mar* 

The like mutatis mutandis may be applied to the great or 
privy feal. 

2 If 

(0) This cafe is reported in i Rol. Rcj^. 50. by the name of Rol^hifon'i Cafe, 



Hijloria Placitorum Corona. 189 

If a man counterfeit the {lamp of the great feal, and de- 
liver it to J3. to ufe, B. htm^ ignorant that it is a counter- 
feit ftamp, but thinking it true, feals a writ or commiffion, 
this feems not to be treafon in B. becaufe he did it not pro- 
ditorie\ but it feems to be treafon in the deliverer, if he de- 
liverd it to that purpofe, for he did it proditorie, but the 
other not. 

III. I come in the laft place to conlidei: the judgment in 
the cafe of counterfeking of the feal, whether it be only to 
be drawn and hanged, as in the cafe of counterfeiting mo- 
ney, or to be drawn, hanged, beheaded, i^c. as in the cafe 
of compafling the king's death, levying of war or adhering 
to the king's enemies. 

It feems that at the common law this offenfe \vas felony 
or trealon at the king's eleftion, if the indi6lment ran only 
felonice it was only felony, if proditorie it was treafon. (p) 

But altho it were proditorie and fo applied to treafon, it 
was not a treafon of lo deep a die, as that of compafling the 
king's death, adhering to the king's enemies, or levying war, 
which ftrikes at the head, and therefore in comparifon there- 
of it was a kind of petit treafon. 

Clauf. 6 Johan. M. i 2. dor\. " Scias quod dedimus Adji de 
E^ex clerico noftro pro fervitio fuo omnia terras, tene- 
menta &: jura, quas fuerunt WillielMi de Strubby^ cujus terrse 
& tenementa funt efchaeta noftra per feloniam, quam 
" fecit de falfificatione figilli noftri." Et nota the king had the 
efcheat, yet the offenfe \Vas ftyled felony. 

At the parliament 1 8 JS. i . Co. P. C. p. 1 6. Clergy \vas al- 
lowed to a man convicl pv falfificatione figilli regis, delibcra- 
batur ordinario (^), but in tali caju non admittenda cji purgatio ; 

B b b and 



(f) Co. 7. C. f. i^. ^iii4 clerktis efl, the jury find hira 

(?) T^i's is confirmed by Thil'ip "Bur- guilty de feloma ^ fcditione pradiSis 

dons cafe, ('P. i8£. 2. S. R. Rot. ij. It impojitis, and he was thereupon deli- 

Rex.Sonth')^\\oio^^t]\ct vi\t\i Richard Verd to his ordinary, tanquam clcricm 

de 'Bourne was indifted, ^.hd nequiter conviRus:, from hence it appears that at 

^ jl-diticfe contrafcch figillinn de metnllo common law clergy was allowed in cafes 

ad jnodiim ■magmJtgUli regis, dc quo qui- of treafon, where it was not immcai- 

dem Jigilh co'iitrafaSio diverfa hevia ately againfl the king's perfon, 
quitmpttirima cop/^gv.ivir j he pleads, 



1 8 (5 Hifloria Placitoriim -Corona. 

and yet in thefe greater cafes of treafon of levying war or 
compaffing the king's death clergy was not allowed at com- 
mon law. T. 11 E.y B.R. Rot. 23. Rex. (r) 

M. I £. 3. Charter de Pardon i 3. (/). A man arraigned 
for counterfeiting the king's leal pleaded a charter of pardon 
of all felonies, and it was allowed ; yet there it is agreed, 
that the judgment for fuch an otfenfe is, that he lliall be 
drawn and hanged, but fuch a pardon will not ferve in fuch 
a cafe fince the ftatute of 2 5 £. 3. 

Trin. icE. 2. Rot. 132. B. R. Ducks. " Rohertiis Legat & 
" Johannes Salecok per ballivos coram rege ducti ad rel'pon- 
" dendum domino regi de hoc, quod ipli cum alils ignotis 
in pleno mercato villas de Olneye, cum quadam falfa com- 
millione & fi£la cum quodam figillo regis controfa6lo lig- 
nata, quam ballivi in curia regis hie pcrrexerunt, affe- 
" rentes illam fuper eos inv^eniri die, quo attachiati fuerunt, 
& dicentes, quod virtute iliius commiffionis prilas fecerunt 
ad opus domini regis, uique ad fummam fexaginta beftia- 
rum, de quibus quatuor beftige invent?^ fuerunt in eorum 
pofTeflione & cum eis hie du£la: ; they both plead not 
guilty ; the jury find John Salcok guilty de falfitatibus & fe- 
loniis pra^diftis, judgment given againft him pro fallitate 
figilli regis &: commiffione pncdicb's quod detrahatur & 
" pro furtiva abdu6l:ione pra^di^liirum beftiarum fufpen- 
" datur." 



4 Nota, 

(r) That cafe was thus, 'Pc/^r^^T'/'or/f " quod clericus eft & ttiembrum facra: 
fonofyo^«//£'Z7'or/f wasindifled, andaf- " ecclefia:, &c. Ec quzfitum eft fxpius 
terw.irds outlawed anno i8£. 5. pro di- " ab co, fi quid aliud velit dicerc pro 
verjis fcloiiiis ^ feditioniltis, viz. going " refponfione in retardationem judicii, 
to little Tarmotttb and Gorlcjlon cum " &c. Qui dicit, ut prius, & nihil a- 
trilmvcxiUis extev/is in modum gtierree, " liud refpondet, &c. Et infpeftis in- 
breaking open houfes there, felonioufly " didtamentis prardiftis, & ctiam recor- 
taking away goods there, i^c. and alfo " do & preceflu utlagar' prsdiftx mani- 
five ftiips, " Qua: prseparatse erant de " fcfte compertum eft in eifdem, quod 
*' viflualibus & aliis neceffariis eundi " utlagar' prsedidta fuper articulo fedi- 
" cum domino regc in guerra fua, &c. " tio)in promulgatur, in quo cafu pra:- 
" Afterwards coram rege quaefitum eft " di£lus 'Fctriis privilegio clericali gau- 
" a pricfato Tctro, fi quid pro fe habeat " derc non poteft fecundum legem & 
" ycl dicere fciat, quare ad executionem " confuetudinem regni, &c. Ideo idem 
" judicii de eo fuper utlagaria pradida " Teirns diftrahatur & fufpendatur,&c, 
" procedi non debeat, &c. Qui dicit, (f) i E. 3. 23./-. 






a 

C( 



Hifforia Placitorum Corona. 1B7 



N(?frf, an arraignment of treafon without indi(0:ment upon 
the mamouer (t) found upon them: -vide P. 21 H. 3. B. R. 
Rot. 46. Midd' Rex. 

According to the old books above-mentiond, Fleta, iffc. 
ubi fupra, diflrahi debet ^ fufpendi ; and fo it was pra6liied 
in the cafe of 2 H. 4. above-mentiond, wjiere the judgment 
is only diflrahi ^fufpendi. 

And it may be reaionably argued, that as in the cafe of 
counterfeiting the king's coin, which was a treafon at com- 
mon law, tho it be fo declared by the ftatute of 25 £. 3. 
yet the judgment, that was at common law, which was 
only to be drawn and hanged is not altered by that ftatute.^ 
M. I o Car. B. R. Morgans cafe (u) : fo in cafe of Counter- 
feiting the feal ; but at this day the law is generally held, 
that for counterfeiting of the great or privy feal, or of the 
privy lignet or fign manual, the judgment is to be hanged, 
beheaded and quartered, as in other high treafons, and fo 
was the judgment in the cafe of 1 6 Jac. above-mentiond ; 
and it is fafeft to follow the modern pra£lice in judgments of 
high treafon, tho I think it no error, if the judgment be only, 
qmd diflrahatiir i^ fufpendaturj according to the antient pre- 
cedents, becaufe the judgment is ftlll capital, and tho it be 
lefs, than the highell judgment in treafon, yet it is ftill in- 
cluded in it. 



(r) See for this kind of arraignment, 7 H. 4. 43. h S. 'F.C 148. c. s Co. Inji. 
88. (u) Cro, Car. 383. 



1 88 Hijioria P lac it ovum Corona, 



CHAP. XVII. 

Concerning high treafon in counterfeiting 
the king's coin, and in the firfl place 
touching the hiflory of the coin and 
coinage of England. 

THE Legitimation of money and tlie giving it its de- 
nominated value is juftiy reckond inter jura majejlatis, 
and in England it is one fpecial part of thus king's preroga- 
tive. 

Before I enter into the particulars concerning money I 
will give a hittory or narrative of the various Hates and con- 
ditions and changes of money in the feveral ages of this 
kingdom, and then lliall defcend to feme more particular ob- 
fervatlons, which will be nfeful in this bufinefs. 

Money is the common meafure of all commerce almoU 
through the world ; it conlifls principally of three parts ; 
1. The material, whereof it is made. 2. The denomination 
or extrinlic value. 3. The impreffion or ftamp. 

I. The material in England is either pure lilver, or pure 
gold, whereof poffibly fome money was antiently made here 
in England, or elfe lilver or gold mixed with an allay, which 
was ufually and is hitherto a fmall proportion of copper. 

The ftandard of the money of England, that hath for 

many ages obtaind, is that, which is commonly called Stei-- 

ling (a) gold or Sterling filver, for tho the denomination of 

Sterling was at firfl: applied to the coin of lilver and to that 

4 coin, 

(^) Some imagine this word to come that it was taken from Tome TlcmiJJ} 

from the town of Sterling in Scotland,- workmen, who in the rcign of king 

where they pretend the pureft money yoh;z were invited over to reduce tho 

was formerly made ; others that it is de- money to its proper fincnefs j the people 

rived from the Saxon word Stecrc-, of that country being generally caJled' 

which iignifics rule or ftandard j others E.-'/ierlh'g!. 



Hijioria PI act tor um Coro^ia, I89 

coin, which was the penny commonly called Sterlingus, yet 
life hath made it applicable not only to all kind of Engli/b 
coin of fih^er, but alio to coin of gold, and this is called the 
Ibndard of coin. 

But before this can be well underftood, we muft make fome 
digreffion touching the meafures applicable to thefe materials. 

In lilver the meafure or weights applicable thereUnto are 
principally thefe : 

1 . The pound, which being not averdupois, but troy weight 
coniifts of tw^elve ounces. 

2. The ounce conhfting of twenty penny weight. 

3. The penny or Sterling conlifting of thirty-two grains 
of wheat taken out of the middle of the ear. 

This is the old compofitio menfiirnrum fettled in the time of 
E, I . {b) vizc quod denarius Anglix, qui denominatur Sterlingus 
rotimdus, fine tonjura ponderabit triginta duo grana frumenti medio 
fpicce, i^ viginti denarii faciunt unciam, iff duodecim unci^ fa'- 
ciunt libram, i^ o5lo librae faciunt gallonem, i^ oSto gallones 
hujfellum. (c) 

And it is to be remembred, that at that time a penny did 
really weigh the twentieth part of an ounce of lilver, and 
twenty pennies did really weigh an ounce of lilver, and two 
hundred and forty pence did really amount to a pound weight 
troy, and to twenty iKillings, which made a pound of lilver coin. 

And altho at this time the coin is railed, and therefore va- 
ries from what It was at that time, yet to this day twenty 
fhillings In fdv^er is called a pound, atid the meafure of an 
ounce is by twenty penny \veights according to the old propor- 
tion ; but indeed the grain is changed (*), for whereas thirty 
[two] grains of corn then made an ounce [a penny weightj, 
yet becaufe the vi^eight of corn Is not always uniform, and 

C c c the 

(b) An old leiger book of the abbey three pence. Sec 7l;;^^/'s note on Ra' 

of St. Edmundilury fiys the affklr was fin\ h\i}ory fnb fine FJ. I. 

thus fettled in 5 E. i. by Qcorge Rock- (c) Vide ftatute 51 E. i. a Co. Injlit, 

ley then mayor of London and mafter of 57?. 

the mint ; and in the 18 £. i. an indented (*) There being, as I apprehend, t*o 

trial-piece of the goodnefs of old Ster- or three miftakes in this paragraph, I 

ling was lodged in the exchequer, and was not willing to vary from the origi- 

every pound weight troy of fuch filver nal MS. but have inferred in bracketi 

was to be fhorn at twenty fhillings and what I think was intended. 



1 90 Hifloria Placitorum Corona, 

the number of thirty [two] was not fo ready and eafy for 
computation ; the penny weight is now divided into twent}'- 
four equal parts, \\diich are commonly in the bulinefs of the 
mint called grains. 

But touching the meafure of gold there is fome difference 
in relation to coin from that of iilvcr, for we are told by the 
liher ruber fcaccarii in that large tra£l concerning money, that 
the pound of gold conhfts of twenty-four carets, every caret 
weighing half an ounce of filver, and every caret conhfting 
of four grains ; and confequently every grain of gold would 
w^igh lixty of thofe grains, which we call grains of lilver, 
vi'^i. the artificial grains, whereof twenty-four made the pen- 
ny weight, {d) 

Now the Sterling ftandard was antiently, as it feems, fome*- 
what different from the ftandard as it is at this day, and for 
fome hundred of years before ; for from the 46th year of 
Edivard III. and for fome time before until this day the 
ftandard of Sterling lilver hath been and is this, w^. everv 
pound of Sterling lilver hath eleven ounces two-penny weight of 
fine filver, and eighteen penny weight of copper, which makes 
the allay of Sterling ; but becaufe there cannot be fo exa£l 
an obfervation of the proportion, a half-penny weight of cop- 
per over or under is allowed for the remedy, which is the 
caufe that Sir John Davis in the cafe of mixt monies, fol 24. b. 
faith, that eighteen Ihillings and five pence half-penny argenti 
piiriljimi continentur in qmlibet libra, ^ qiulibet libra de Sterling- 
money avoit 1 8 d. ob. de allay de coper, iff nient plitis. 

But before that time it appears by the red book in the ex- 
chequer, (which was written before 46 £. 3. and after 23 
E. 3 .) the Ifandard of Sterling filver conlifted of eleven ounces 
four penny weight of fine lih'^er, and lixteen penny weight of 
copper, fo that then the flandard was purer ; and poffibly 
by what follows it may appear, that in the time of Henry II. 
the ftandard was purer, than that, for then there was allowed 
only twelve^'pence upon the pound of filver dealbare firmam (e), 
which poffibly might be to reduce it to fine filver, but this is 
obfcure; de hoc poflea. The 

{d) If I caret=4 grains=! ouncc=io ;J penny wciglit=(yo grains of fiJver, 
penny weight, then 4 caret=i grain= (e) Mat. Tarts i\i. 



Hifioria Placitonim Cor once. 19 1 

I'he ftandard of Sterling gold in the latter end of £. 3. {[) 
was, that a pound of Sterling gold confifted of twenty-three 
carets, three grains and a half of pure gold, and a half grain 
of allay of copper, and thus I think it continues to this day ; 
and by this we may underftand the ftatute of 1 7 £. 4. cap. i . 
and 4 H. 1. cap. 2. by the former it is provided, that no gold- 
fmith fell any gold under the iinenefs of eighteen carets, nor 
filver under the allay of Sterling ; by the latter, that all lilver, 
that fliall be fined or parted, be made fo fine, that it may 
bear twelv^e penny weight of allay in a pound weight, and 
yet be fo good or better than Sterling. 

And this is the di^^nity of the coin of England, that it 
hath been generally of the allay of Sterling, (except fonie 
fmall interruptions, whereof hereafter) and according to this 
it was enafled 2 5 E. 3 . cap. i 3 . that the money of gold and 
filver, which now runneth, fliall not be impaired in w^elght 
or allay, but as foon as a good way may be found, the fame 
be put into the antient ftate, as in the Sterling made upon 
the petition of the commons. Rot. Par. 2 5 E. 3. w. 3 2. 

II. As to the fecond elTential of coin it is the denominated 
or extrinfic value, which is and of right ought to be given 
by the king, as his unquefllonable prerogative (g), and that 
is feen in thefe particulars. 

I. In the firf-t inftitution of any coin within this kingdom 
he, and he alone fets the weight, the allay, the denominated 
value of all coin ; this is done commonly by indenture be- 
tween the king and tlie niaffer of the mint ; de quo pofiea. 

And tho by ipecial charter or ufage divers prelates and 
monafteries in England had a certain number of ffamps for 
the coinage of money, as the abbot of St. Edmundsbury, 
Clauj. 32 H. 3. »?. 15. dorf. the archbiihop of Tork, Clanf. $ 
E. 3. part. I. m.i^. and likewife the archbiihop of C^w^^r/'/^ry, 
the biiliop ol Durham, the billiop of Chichcfler, ^c. de quiku 
vide flatute 14 (i?" i 5 H. 8. cap. i 2. yet they had only the 
profit of the coinage, and the relidence of fome coiners at 
their cities, but they had not the power of inflituting either 
the allay, the denomination, or the ftamp j the ftamps were 

ufually 

(f) Sec Ti-i^dal's note on R.^fiu's h'lHoty fub fi/ie Ed._ 3. (g) Tlo. Com. ^16. 



192. Hijtoria Placitorum Corona. 



ufually fent tlTCm by the treafiirer and barons of the exche- 
quer by the king's command under his great feal, and the 
mailers or chief officers imployed therein were fworn to the 
king for the juft execution of their places. Clauf. 5 £. 3. 
part. i.in. loisf \g. 

But thofe mints haVe been long difufed, tho it fhould 
feem by the ftatute of 1 4 H. 8. cap. i 2. above-mentiond, that 
the feveral ftatutes made againft exchange of money, other 
than at the king's exchanges, were not intended to prejudice 
thefe particular franchifes of coinage. 

2. He may by his proclamation legitimate forein coin, and 
make it current money of this kingdom according to the va- 
lue impofed by fuch proclamation ; but the counterfeiting of 
fuch money was not treafon, till the ftatute of i Mar. cap. 6. 
made it fo, nor the clipping, Walhing, impairing thereof was 
not treafon till 5; Elii^, cap. 1 1 . and 1 8 £//^. cap. 1 . but all 
thefe ftatutes allow the power of legitimation thereof to the 
king by proclamation. (/;) 

3. He may inhanfe the external denomination of any coin 
already eftablilhed by his proclamation, and thus it hath been 
gradually done almoft in all ages, as will appear by what fol- 
lows in this chapter; this is fometimes called imbafing of 
coin and fometimes inhanling it, and it is both, it is an 
inhaniing of coin in refpe£l of the extrinfic value or denomi- 
nation, but an imbafing in regard of the intrinfic value ; as 
for inftance, when in the time of E. 4. a noble was raifed to 
a higher rate by twenty pence ; vide 9 E. 4. 49. 

4. He may by his prerogative imbafe the ipecies or mate- 
rial of the coin, and yet keep it up in the fame denominated 
or extrinfic value as before, namely to mix the fpecies of mo- 
ney with an allay below the fl^ndard of Sterling ; this is the 
cale of mixt monies in Sir John Davis's reports, where the 
cafe was this. 

2 April, 

i,h) See alfo 8 £5? 9 W' 3. cap.^'). and ments out of the Icing's mint, or mark 

1 Ann. cap. 15. whereby it is high trea- on the edges any coin ctirrent, or to 

fon knowingly to make, mend, buy, fell, counterfeit, or colour or gild any coin 

or have in pofTeffion any mould or prefs refembiing the current coin of the king- 

for coining, or to convey fuch inftru- dom. 



Hifioria Placitorum Cor once. 193 



A^riU 43 E^'^' jBr^^t bought w^ares of one Gilbert a mer- 
chant in London, and became bound to him in 200 /. condi- 
tiond for the payment of one hundred pound Sterling current 
and lawful money of England in September following at Dub- 
lin in Ireland : 24 May, 43 Elisi. the queen fent into Ireland 
certain mixt m^oney from the tower of London with the uiual 
ftamp and infcription, and declared by her proclamation, that 
it Ihould be lawful and current money of Ireland, vi^. a Ihil- 
lino- for a ftiilling, and llx-pence for fix-pence, and that ac- 
cordingly it fhould pafs in payment, and none to refufe, 
and declared that from the i oth of July next all other mo- 
ney lliould be decried and efteemed only as bullion and not 
current money. Upon the day of payment Brett tendred 
the 100/. in this mixt money, and refolved upon great con- 
lideration, that this tender was good, the place of payment 
being in Ireland, and the day of payment happening after 
the proclamation made j that altho this were not in truth 
Sterling, but of a bafer allay, nor a money current in Eng- 
land by the proclamation, yet the payment being to be made 
in Ireland, it was as to that purpofe current money of Eng- 
land-, but if the day had been pafied before the proclamation, 
then he muft have anfwerd the value, as it was when the 
payment was to have been made. Sir Johri' Davis's reports, 
cafe de mixt moneys. (/') 

It is true, that the imbafmg of money in point of allay 
hath not been very ufually pra6liled in England, and it Would 
be a difhonour to the nation, if it lliould, neither is it fafe 
to be attempted without parliamentary advice ; but f arely if 
we refpedl the right of the thing, it is within the king's 
power to do it ; for tho the ftatute of 25 £. 5. cap. i 3. a- 
bove-mentiond be againft it, yet the ftatute doth not abfo- 
lutely forbid it ; and altho by Poynings law \o H. ']. all the 
precedent ftatutes in England are of force in Ireland, yet that 
refolution was given as above. 

J^ly lord Coke in his comment of Articuli fupcr cartas, cap. 
20. leems to imply, that the alteration of money in weight 
or allay may not be without a£l: of parliament, and for that 

D d d purpofe 

fO "Davis ReJ>.iS. 



194 Hifloria Placitorum Corona:, 



purpofe cites tlie Mirror of juftices (k\ Ordein fuit, qe nul roy 
de ce realme m poit changer fa money ne impayre, ne amender, 
ne autre money faire, qe de ore ou de argent Jans ajfent de touts 
fes counties ; and the ail of 25 £. 3. cap. 1 3. the ftatute of 
9 H ')' Jeff. 2. cap. 6. that all money of gold and filver Ihall 
be as good weight and allay as is now made at the Tower : 
the parliament-roll of 17 £. 3. w. i 5. (/), which was an ac- 
cord in parliament for the prefent amendment and increafe 
of coin de fayre me mony des bones Efterlinges en Engleterre du 
poys ilf allay del amtient Efterlinges, qe aver a fin courfi in En- 
jrleterre enter les graunts iff commons de la terre, which fhould 
not be exported ; and if thofe of Flanders would make mo- 
ney of as good an allay as Efterlinges, that it Ihould be cur- 
rent between merchant and merchant here and others, that 
would receive it, which was a temporary provifion for the 
increafe of money. 

All that a man can conclude upon thefe is, that it is nei- 
ther fafe nor honourable for the king to imbafe his coin be- 
low Sterling, if it be at any time done, it is fit to be done by 
affent of parliament, but certainly all that it concludes is, 
that fieri non dehuit, but faBum valet, and this appears, 

1. By that refolutlon in the cafe of mixt monies, which, 
tho it were but by way of advice and in Ireland, is of great 
weight, efpecially if we conlider the confonancy thereof to 
the pra£l;ice in Ireland, which tho it hath the fame law of 
2 5 E. 3. in force there, yet generally their coin current there 
was of a bafer allay than Sterling, even before the proclama- 
tion of 4 3 Eli^. 

2. By the ufual Inhaniing of the coin in point of value 
and denomination here, which tho it be not abfolutely an 
imbafement of the coin in the fpecies, yet it hath very near 
the fame efFe£l:. 

3. By the attempts that have been made to reftrain the 
change of coin without confent of parliament. Among thofe 
many proviiions by the lords ordeiners, 5 £. 2. w. 30. that 
much abridged the king's power, this ^^^as one, pur ceo qe a. 
touts les foys qe le change de mony fi fait en royalme, tout le peO' 

z pis 

(k) cap. I. 5, 3. {I) See Co. T. C /. 93* 






Hifioria P lac it or urn Coronas. 19^ 

^/^ efi grmdment grieve^ in molts des manners, nous ordemams, 
qe quant meflier ferra ilf le roye voile exchange faire, qil la face 
par common coimceR de fon baronage i^ ceo en parlement. 

But thefe ordinances, and this among the reil was repeald 
in parliament E. i. and never revived again. 

Rot. Par. 10 E. 3. ^.17. " Item qe les recevers des pay- 
" ments noftre feigneur le roy recenent de people en cheicun 
place auxi bien or come argent al prife affiis deficom le 
people eft arte de eel receiver pur payment, &: qe la 
change de mony de or ne dargent ne le face fans aflent de 
" parlement. Ro'. Q_uant aprlmer point de c'article foyt tenus ; 
" quant a les changes fair ioit I'article liionftre a noftre feig- 
" neur le roy, & as graunts qe font perdervers lui, qils ent 
*' ordeignent & dient lour volunte. 

King Henry VIII. imbafed the coin of this kingdom in 
point of allay, and fo it continued during the relidue of his 
reign, and during the reigns of Edward VI. and queen Mary, 
in fo much that the penny had not above a half-penny of in- 
trinlic value ; but queen Elizabeth among the reft of her ex- 
cellent methods of government did by little and little reftify 
this deteftable imbalement of coin, i. By prohibiting expor- 
tation, and melting down of good filver. 2. By reducing 
the brafs money to its intrinftc value. 3. By making a good 
allowance (to her own lofs) of the bafe money brought into 
the mint. 4. By ftamping of new money of juift allay of 
Sterling : Camd. Eli^. fub anno i $60. ^.48. 

While I wrote this a proclamation hath iiTued dated 1 6 
Aug. 1 57 2. whereby copper coin of half-pence and farthings 
near the intrinfic value is proclaimed in thefe w^ords; " We 
do by this our royal proclamation declare, publifti and au- 
thorize the faid half-pence and farthings of copper fo coin- 
" ed, and to be coined, to be current money, and that the 
" fame from and after the i6th of Aug. lliall pals and be 
" received in all payments, bargains and exchanges to be 
made between our fubjefts, w4iich lliall be under the value 
of fix-pence, and not otherwife nor in any other manner ;'* 
how far this makes it current money, vidcbimus infra. 

And 



u 






1^6 Hifloria Placitorum Corona. 



And thus far touching the power of denomination, or fet- 
ting the extrlniic value upon coin ; the manner how this is 
done will be ihewn hereafter. 

III. 1'he third elFential in coin is the ftamp or impreflion, 
for tho it may be pofTible, as Mr. Stowe lays, that in antient 
time money paiTed in England without a ftamp or imprellion, 
yet I never read any fuch thing fince the conqueft, for that, 
which is frequently called blank money, was not money with- 
out impreffion, but white money or pure filver, or at lealt 
Sterling lilver coined, ibr otherwife it had not been an apt 
meaiure for commerce : the ftamps or imprellions of cOrrent 
money were heretofore dellverd to the mafter of the mint 
from the exchequer, but of later times they are deliverd by 
the fecretary fometimes with, fometimes without the inden- 
ture of coinage : now touching the manner of the legitima- 
tion of coin in England, it is fometimes by proclamation, 
but always by indenture between the king and the mafter of 
the mint. 

And therefore where Sir John Davis in the cafe ubi fw 
pra (m) makes thefe lix things as eifentials to the legitimation 
of coin, I. Weight. 2. Finenefs. 3. Impreffion. 4. Deno- 
mination. 5. Authority of the prince. 6. Proclamation, 
The laft is not always neceffary to the legitimation of coin, 
for there is fcarce any king's reign, but that there are vari- 
ous ftamps or imprellions of money, which w^ere never pro- 
claim.ed , and therefore if upon an indiftment of clipping or 
counterfeiting the king's coin it be queftioned, whether it be 
the king's coin or no upon the evidence, there is not a ne- 
cellity of proof thereof by a proclamation, but it is a meer 
queftion of fa61:, which muft be left upon the jury by circum- 
Itances of fa6l to find, whether it be the king's money ; for 
tho there might be polTibly proclamation of fome new coins 
in the beginning of kings reigns, yet it would be impoffible 
to prove them in the antient coins of Edward VI. queen Ma- 
ry, queen Elizabeth, ^c. but if neceftary to be fuppofed, 
they may be prefumed ex diuturnitate temporis ; the moft 
therefore that can be expected is to produce the officers of the 
2 mint 



Hijtoria Pinch or um Corona. 197 

mint or their indenture to prove a coin current, if it be not 
otherwiie commonly known. 

But proclamation is necefTary in thefe cafes following. 

1. A proclamation with a proclamation-writ under the 
great, feai is neceflary to legitimate and make current fb- 
rein coin, and without the proclamation it is neither current 
coin of this kingdom, nor is the counterfeiting, clipping or 
diminllhing thereof treafon within the ftatute of i Mar. or 
5 or 1 8 EUt^ for the words in thefe ftatutes {md hy proclama- 
tion allorpcd and jtiffered to be current here) refers only to fo- 
rein coin, not to the coin of this kingdom ; but tho it be 
not proclaimed, it is mifprilion of treafon to counterfeit it 
by the ftatute of 1 4 £//:^. cap. i . 

The reaion is efpecially becaufe by the ftatute of .17 jR. 2. 
cap. I . no forein coin of gold or filver are to run in any man- 
ner of payment within this realm, but are to be brought as 
bullion to the mint to be turned into Engli/h coin. 

2. A proclamation tinder the great feal is necefTary to le- 
gitimate bafe coin or mixt below the ftandard o( Sterlings and 
for the difpenfing within the ftatute of 25 R 5. cap. 1 3. and 
4 H 5. cap. 6. and with application to that cafe the opinion 
of Sir John Davis's report touching the neceflity of a procla- 
mation feems to be good in law. 

3. A proclamation under the great feal is necefTary, when 
any coin already in being is inhanfed to a higher denomina- 
tion or extrinfic value ; as when the twenty fliillings piece of 
gold was raifed to twenty-two fliillings, becaufe it was once 
current money under another denomination ; thus it was 
done upon the inhanfing of twenty ftiillings and ten ihillings 
pieces by king James. 

4. A proclamation is neceflary when any money, that is cur- 
rent in ufage or payment, is decried ; thus it was done in the 
cafe of 4 3 Eli^. for the Sterling money in Ireland before men- 
tiond ; and thus it was done by the Pollards and Crocards tern- 
pore E. I. (n\*Dy. 82. and by the feveral bafe monies men- 
tiond in Articuli de moneta, namely the money with the mi- 

E e e tre 

(«) 2)iivis II. l/. Sec the note in R-r^in's Mi^. ful fine Ed. i. 



198 Hi/ioria Placitorum Corona. 



tre and with the lyons, which it ieems were minted in Eng- 
land, beiides the other forein money therein mentiond, (0) 

5. Altho in the cafe cf money newly coined by the 
king's authority in England a proclamation is not abfolutelv 
neceffary to the legitimation thereof or making it current, yet 
to induce a contempt upon luch as refufe to take it in payment 
luch proclamations have not been altogether unufual, and by 
the red book of the exchec]uer feems neceffary for that pur- 
pofe ; for how can men realonably linow at firft, w^hether 
this be the king's coin without fom.e fuch public notification, 
where long ufe and cufl:om hath not made the flamp or coin 
familiarly know^n to thoie, that are to receive it : vide pro- 
clamations for money newly made principally upon this ac- 
coimt, ClauJ. 18 E. 3. pan i. m.iZ & 12. dorf. Clauj. 18 £. 3. 
part 2. m. 14. dorj. Clauj. 1 9 £. 3. pan i. m. 23. ^ pan 2. m. 
I 5. dorj. Clauj. 20 E. 3. part 2. m.20. dorj. and 2 5 JS. 3. »z. 1 4. 
dorj. But yet the money is the lawful money of England, 
and he that counterfeits it is within the law of 2$ E^ 3 • for 
treafon, tho there be no fuch proclamation : vide Lib. Ruhr. 
Scaccariif jol. 259. " Imprimis oportet ut omnem mjonetam 
prarcedat confl:ru£llo aliaii, viz. ponderifque & numeri ip- 
lius monetse diftinfte & apte continens moderamen, deinde 
inchoanda eff & perficienda ex edi6lo aut licentia principis 
fpeciali, & publicanda per proclamationem pra^conis ipfius 
" principis publice, ut mos exigit faciendum, & tunc ufui 
"^ apta erit : ita ut ex tunc non fit impune a quoquam de 
" populo recufmda. Qiiicunque autem clam vel aperte vei 
" palam abfque licentia principis cujufcunque monetae contra- 
" taflionem attemptaffe conviftus fuerit, corporaliter ple£l:i 
" foiet." 

And now I fhall give a brief hiftory of the variation of 
the coin of England. 

It appears by all the antient monuments, that I have feen, 
that the uie of coin or money was antient and long before 
the conqueih (p) ' It 

(fl) And tlius it was lately done in the (/') Th.at money was coined here in 

ctfc of the broad pieces of twenty-five the time of the Saxoiis is fufficiently 

fliillings nnd twenty-three fhilllngs, plain, but it is very doubtful whether 

I the 



HI ft or i a Placitorum Cor once, 199 

It is true that Gervajius Tilburienfis^ who wrote the black 
book of the exchequer in the time of Henry II. commonly 
called ma^ifler ^ difcipahis^ Lib. L ai.p. a qiiihm iff ^d quid 
inflitnta fuit argenti purgatio, lays, that in the times of kinj^ 
M'illiam I. William II. and Henry 1. tlie antient (arms of 
the king's demefnes were anfwered in cattle, corn, and other 
provifions in fpecie, becauie it laved the king the trouble of 
purveyors, and money was Icarce among the people, and yet 
the relervarlons of their rents were in money, ^7^. fo many 
pounds numero, or fo many pounds blanc ; de qui has infra. 

And to make an equation between the provifions, that 
were anfwered in kind, and the rents that were referved, there 
were certain rates or prices agreed upon almoft all fuch pro- 
vifions, as for wheat for one hundred men per diem twelve 
pence, for a fat ox twelve pence, i!fc. which it feems were 
deliverd to the Iherilf, and by him anfwerd to the king in 
money or kind, as it was agreed. 

But thofe farm rents, that were referved out of the cities, 
boroughs, franchifes, ^c. becaufe they had not provifions in 
kind were anfwered in money according to their refervations. 

In the time of Henry I. this anfwering of farms by provi- 
fions ceafed, and the tenants paid their money according to 
the letter of their refervations ; the king was weary of recei- 
ving, and the farmers weary of paying their rents in victuals 
and provifions, but money ftill was in ule as the common in- 
ftrument of commerce and valuation. 

In the troublefome time of king Stephen we are told by 
Roger Hove den jub anno 1 1 49. Omnes pot em ex tarn epifcopi, quam 
comites ^ barones Jiiam faciebant monetam, which occafioned 
a great confufion and corruption in money and commerce (q) : 
Henry II. coming to the crown reformed this ufurpation and 
abule, novam fecit monetam^ qiu fola accepta erat iff reeepta in 
regno (r) ; and thus it hath hitherto obtaind, only fome par- 
ticular 

tlic Tritons ever coined any ; in Ctffar's in Anglia qiiodammodo tot reges vel po- 

time they ufcd only iron-rings, or pieces tins tyra'ani^ quot domini caflellorim^ 

of brafs j C<efar. Com. dc B. G. lib. 5. hahcnres Jiaguli ferciijjfitram ^roprii 

w. II. nmnifmatis. 

(f) William of Neivlnry writes thus (r) Sec JVilk. Leg. Henry II. /. 310. 

under the reign of kin" Stephen. Frant whcrcthefe words are alfo added, (jW/V.-jra 



200 Hifioria Placitorum Corona. 



ticiilar corporations ecckliaftlcal, as bifiiops and abbots had 
fpecial privileges granted to them to have mints (/), lome one 
ftamp, fome two, fome more, which yet were lent to them 
from the king's exchequer, and their officers fwom to the 
king to deal faithfully in their offices. 

Yet after this king's time, efpecially in the beginning of 
king John^ time, there was a great uncertainty and diforder 
both in the weight and allay of coin ; for Clauf. 7 Johann. 
m. z^. Sciatis quod recepimus per manum Petri de Ely, iffc. tre"" 
cent as lihras numero, qu.c ponder ah ant quingentas llbras 47 j. Zd. 
and in the fame roll, »/. 25. recepimus de Th.z.ixi.vi:o per mahus 
Petri de Ely, 1 7 2 5 /. ^ 1 1 j. 6^. numero, qu^ ponderabant i 5 5<^ A 
I 7 J. 6 d. which holds no proportion with the former. 

Henry III. had a troublefome reign, and malefa6lors a- 
boundcd efpecially in relation to the clipping ci money ; in 
bis thirty-fecond year he made nev/ money, and ordained ne 
quis denarius, nifi legitimi ponderis ^ circularis formic uteretur, 
dipt money not being to be received but perforated, and di- 
vers offenders were hanged. Mat. 'Paris fuh anno 1 248. (it) but 
we have not the juft ftandard or Vvxight of his money. 

In the time of Edward I. we know what the weight and 
allay of his current money was, namely the allay was Ster- 
ling, twenty ffiillings made a pound weight troy, and twenty- 
pence an ounce, fo that the pound of Sterling filver made 
two hundred forty Sterling pence. 

There were other bale monies in his time, as nam.ely, thofe 
that were decried by the ArticuH de moneta, and Pollards and Cro- 
cards ; what the value of the latter was I know not, but it 
appears by Clauf. i?> E. i. m.6. quod pro qualibet libra pollardo- 
rum una marc a St^rlmgoxmn johntur ad Scaccarium : they were 
both decried in the 28 £. i. Cu). Vide Dy. 81. This rate of 
Sterling continued during fome time of Edward II. 

I have 

jam procenmt ilia ; tlic truth is, this re- (f) Sec a charter of king yis/';; allow- 

formation of the money began to be ing this privilege to ifw^f/'rarchhifhop of 

made towards the lAtter cnci of Stc/'be»'s Canterbury. Wilk. Leg. jfohaunis, p^ 955. 

reign, for among the articles of peace {t) f- 747- 

between Stephen and Henry this was in) As appears by the proclaination, 

one, that the iilver coin fhould be one ^lod Tollardi iSJ CrokarHi non currant 

and the fime throughout the kingdom, in regno Angllse. Clauf. 28 E. i. ?». i:. 

Ibid. /. 515. lilett. "Fans, p. i"~,9. dorf. by which record it alfo appears, 

I that 



Hiftoria Placitorum Cor once. zoi 

I have not leen any Indentures of the mint between the 
time of Edward II. and the 46 Edward III. {x\ and then by 
the indenture of the mint €lauf. ^6 E. 5. ni. 18. a pound of 
gold made fortv-five nobles, each noble lix Ihillin^s and eight 
pence, and was to confift of twenty-three carets, three grains 
and an half of fine gold, the reft allay ; the coinage to be 
four IhlUings for each pound for the matter of the mint, and 
twelve pence for the king ; the pound valued at fifteen pounds, 
and the merchant upon the return to have out of the Tower 
fourteen pounds fifteen Ihillings. 

A pound of iilver was to make three hundred pence, and 
fo in that proportion groats, half-pence and farthings, which 
was to be of the allay du viel Eficrlin^, vi^. eleven ounces 
two-penny weig;ht of fine iilver, and eig;hteen penny weight 
of allay, eight pence to be allowed for coinage. 

The next Indenture I find is 3 H. 4. ^. 2. m. ^. dorf. 
whereby a farther alteration was made. 

The pound of gold made the flmie quantity of nobles, and 
was of the lame allay as before, only upon everv pound was 
allowed three Ihillings and fix pence to the mailer, and one 
ihilling and iix pence to the king for coinage. 

The fdver coin of the fame fineneis, weight and allay, as 
by the Indenture of 46 £. 3. the coinage eight pence, where- 
of feven pence to the mafter, and one penny to the king upon 
every pound weight. 

ClaiiJ. I H". 5. w. 35. dorf. the allay of gold and iilver ft ill 
the fame as before, but ioms other variance there ^^'as. 

The pound of gold was now to make fift)^ nobles, the va- 
lue of the whole pound to be fixteen pounds thirteen ihillings 
and four pence, the coinage fi\'e ihillings. 

Fff The 

that two Tollardi and one Sterling were 'To-.ver there are feveral indentures to be 

much about the fame value ; for the found within that time, viz. 

words are Licet nupcr pro comriiiun uri- Qatif. i8 i:'. 3. />. 1. m. 19. d. 

tit ate regiii noftri do concilio nojlro ordi- 'Pat. 18 £. 5. /. i. 7//. z;. 

navimus, qtidd duo 'Polltirdi, vcl duo Cro- Clauf. 25 £. 3. /. i. m. zi. d^ 

knrdi currcrent 17: codera regno fro uno Clctif. 25 i?. 3. m. i^. d. 

Stcrlingo. Clc.i'f. 29 £. 5. m.6.d. 

(a) But amon^ the re:o.ds in the f//"//,' 55 £. 3. »?. 10. ^. 



ZOl Hijioria Placitorum Corona. 

I'he pound of lilver was to make three hundred and iixty 
pence, the coinage was nine pence to the mafter, and three 
pence to the king ; fo that now the pound of lilver made 
thirty lliillings Sterlings which began in Kot. Pari, i 3 H 4. n. 
28. by ordinance of parliament. . .. 

Clauf. 9 H. 5. m. 1. dorf. the fame weight and allay of gold, 
7/7^. every pound of gold to make fifty nobles, the coinage 
to the king three Ihillings and fix pence, to the mafter eigh- 
teen pence. 

The like as to filver in all points as by the indenture of 
1 H. $. only the mafter to hav^e nine pence, the king three 
pence for coinage. 

Clauf. 1 H. 6. w. I 3 ^ I 5. The indentiu'e agrees in all 
things with that of 9 H. ^. 

Clauf. 4 E. 4. fn. 20. The king by proclamation Inhanfetli 
the value of coin, fo that the noble of gold, which before 
was {ix. Ihillings and eight pence, is now railed to eight ihil- 
lings and four pence, three groats make a ftiilling, and fo do 
twelve pence, and twenty lliillings make a pound. 

And afterwards he made new coins according to the ftand** 
ard of gold aforefaid, 7;/^. the noble of 2p\d eight Ihillings 
and four pence, and the pound of filver raifed to thirty-feven 
Ihillings and iix pence ; and now I Ihall follow John Stowe m 
his Siiriey of London, p- 41' 

H. 7. raifed the rate of Sterling liK^er coin to forty pence 
the ounce. 

1 8 R 8. the pound of filver coin was raifed to forty fliil- 
lings. 

35 H. 8. the coin of gold was raifed to forty Ihillings the 
ounce, the coin of filver to four Ihillings the ounce, and 
coins of bafe money of allay below Sterling were coined, visi. 
Ihillings, fix-psnces, four-pences, two-pences, pennies : thefe 
were decried in 5 E. 6. and the liiilling reduced to nine pence, 
and alter to fix-pence, (y) 

3 c Otloh. 5 E. 6. Slher Sterling coin Inhankd to five fhil- 

lings the ouiice, and lo proportionably ; and coins of fine 

r Jiold, 

(>■'! CDver 82. 



Hifloria Placitorum Coronae. 203 

gold, a whole fovereign was thirty ilillllngs, an angel ten ftill- 
lings, and bafe money to pafs as before. 

2 £//•<. The bafe money was called in and brought to the 
mint and reduced to Sterling and new coined, and the drofs 
given to repair the highways. 

1 6 Novemh. 2 Jac. By proclamation the new coins of gold 
and hlver then made, together with their impreilions, infcrip- 
tions, weight, and values were proclaimed ; and 2 3 Novemk 
9 Jac. per proclamation the coins of gold are inhanfed, rv:^. 
thirty Ihillings to thirty-three Ihillings, twenty Ihillings to 
twenty-two Ihillings, fifteen fliillings to fixteen Ihillings, ten 
fliillino;s to eleven Ihillings, five iliillings to five Ihillings and 
fix-pence. 

Upon thefe variations thefe things are neverthelefs obfer- 
vable, Firjl, That the old Sterling gold is this, that one pound 
of Sterling gold contains twenty-three carets three grains and 
a half of fine gold, the reft to make it up tw^enty-four carets 
is of allay of copper. Secondly, That the old ftandard of 
Sterling filver is, that every pound \\^eight of Sterling filver 
confift of eleven ounces two-penny weight of fine lilver, and 
eighteen penny weight of allay of copper. Thirdly, That this 
rate o^ Sterling gold and filver hath moil plainly continued to be 
the ftandard of Englifl) <^old and filver coin, at leaft from the time 
of Henry III. until this day in England w^ithout any confiderable 
alteration, faving that bale money, which was ftampt in the 
time of Henry YIII. and then reduced to a lo\\'er valuation 
by Edward Yl. and after re-eftabliihed by Edrvard VI. to its 
former value. Fourthly, I'hat, as well in England as Ireland, 
there hath been imbafing of the fpccies of money, as appears 
in thefe two inftances in the time of Henry Ylll. and Ed- 
ward VI. which are yet the only inftances that I find of that 
nature in England. Fifthly, That queen Elizabeth decried by 
proclamation all that bafe money, which was in life in 
tlie time of her father and brother, and ever fince that pro- 
clamation, -vi^. 2 £//^. the true old Sterling ftandard both of 
gold and filver hath been the only ftandard of the Engli/Jj 
current money. Sixthly, That altho tfie ftandard of Sterling 

hath 



Z04 Hifloria Placitorum Corona. 

hath with great conftancy obtaind in Englandy yet the denc- 
mination or extrinfic or impoied vakie hath i^aried according 
to the pleafure of the king both as to gold and iilver coin, 
as appears by what goes before ; for in Edivard I.'s time the 
ounce of Sterling libber was tw^enty pence, the pound twenty 
lhinin«;s or two hundred and forty pence ; in Edward Ill.'s 
time the pound of Sterling was three hundred pence ; in the 
time oi Henry Y. and fo downward to Edward IV. three hun* 
dred and iixty pence, or, which is all one, thirty Ihillings ; in 
the time of Edward lY. the pound of filver was thirty-feven 
ihillings and fix-pence; in 35 H. 8. the pound 0I Sterling fil- 
ver was forty ihillings ; in 5 E. 6. and fo down to this day 
the ounce of filver iive Ihillings or llxty pence, and the pound 
of Sterling filver three pounds or ieven hundred and twenty 
pence, which in Edward I.'s time was only two hundred and 
forty pence, which now is thrice as much as then it w^as. 
Seventhly, lliat I find rarely any proclamation for the letting 
of the rate of new coin, but only as before, when the denomi- 
nation of what is in being is inhanfed, or abated, or recall- 
" ed ; fo that the indenture of the mint and common reputa- 
tion is that, which muft try what is EngliJJj money. Eighthly, 
That J never find either in the indentures of the mint or 
any proclairiation the ftamp, impreilion, or inicription de- 
fcribed, unleis in that of king James, becaule the Ifamps are 
agreed upon between the king and the mafler of the mint, 
and delivered to him by the king, or his warrant either of 
the great feal, privy feal, fignet, or iecretary of flate. 



c:hap. 



Hiftoria Placitorum Coronce. 20^ 



CHAP. XVIII. 

Concerning the adulteration or impairing 
of coin, and the antient means ufed to 
remedy it. 



THE Decays or impairment of coin is either iii weight 
or allay, the former may happen by fome abufe of the 
moniers or minters, or by the fubtilty of clippers, wafhers 
and other impairers of coin ; the latter, ^7;^. impairment in 
allay, can only happen either by the dillionefty of the moni- 
ers or minters, or by the counterfeiting of coin. 

Antiently all money was paid in number, namely fo many 
pieces made a pound, and this was the common refervation 
and account of all farms, and the eftimating of accounts, -vice' 
comes A. reddit compotum dc lOO /. mimero^ or in thejduro lOoA 
numero. 

But this did not anfwer all intentions, for the money that 
was paid in might be dipt, or otherwife rendred light^ or 
might be counterfeit, or of a bafe allay. 

For remedy whereof there was pratSlifed thefe three me- 
thods of re£lifications of payments at the exchequer, that the 
king might not be deceived, and thefe were fucceflively ufed 
in the exchequer, which we may read Gervaf. Tilb. Lib. I. /«- 
pra quibus. 

I . Solutio ad fcalam, which it feems was a difii or meafure, 
whereby they mealured their money, as well as told it, ibr 
that is the proper iignification oi fcala : but in procefs of time 
this was turned into a meafure of money, which was an ad- 
dition of fix pence for every pound, to avoid the trouble of 
that probation, whereby an hundred pounds numero amounted 
to an hundred pounds and fifty Ihillings ad fcalam ; and fo we 
have frequently in the old pipe-rolls of Henry II. Richard L 
king John, Szl. in thefauro icoL ad fcalam. 

G g g 2, Solutio f 



Zo6 Hifioria Placitorum Coronas. 

2. Soliitio ad penfum, which was the anfwering of every 
pound of money by weight of a pound weight troy, for in 
thofe times the libra argenti coin did or was to anfwer a 
pound weight troy, and therefore the payer was to make it 
good of that weight by anfwering the full weight ; this gave 
the frequent title in the old pipe-rolls, alfo in thejauro i oc /. 
nd penfitm. 

But altho x\\\s folutio ad f cat am or ad penfum^ efpecially both 
together, did give fome help againft the defe6l of coin in 
weight, as by clipping, walhing, or the like, yet it did not 
help as to adulterate money of bafer allay than the ftandard i 
Therefore, 

3. There was found out in the time of Henry Jl. a third 
trial, namely trial by fire or combuftion, and if it were of the 
julf allay it was allowed, if below the allay the payer was to 
make it good, and hence he was faid dealbare firmam ; and 
hence grew quickly a difference between relervations and 
payments of fo much money numerOj and fo much money 
blanc, 

A refervation of fo much money generally was intejided 
of fo much numero, as if a pound were reierved, it was in 
effefl but twenty (hillings in pecimiis numeratis ; but if it 
were expreily faid lo much money blanc, then it was an- 
fwerd in blanc money, but yet with this difference, that if 
a farm were letten and lo much rent generally referved, it 
fhould be intended fo much numero, in pecuniis numeratis ', but 
if a franchife or liberty were granted, and fo much rent gene- 
rally referved without faying blanc or numero, it was commonly 
intended blanc, unlefs exprefly faid reddendo fo much money 
numero, and therefore in fuch a cafe the former was bound 
dealbare firmam, that is to anfwer fo much as w^ould make his 
payment to be fo much good in fine filver, or very near it at 
leail, Gervaf.Tilb. Lib. II. cap. quid Jtt, quo/dam fundos dari 
blanc, quofdam numero. 

And therefore upon all the antient accounts in the pipe 

made by the Iheriff we ihall find fome of his accounts of 

rents to run numero, fome of them to run blanc, vi^. firma 

comitatiis numero, ij firma comitates blanc, according to the va- 

4 riety 



Hiftoria Placitonim Coronde, 207 

riety of their refervations or the things out of which they 
are refer ved ; now what the proportion was between fo much 
money hlanc and fo much money numero in thofe antient times, 
or what this blanc money was, is worth the inquiring. 

I have formerly thought that blanc money was nothing 
elfe but Sterling, and that dealbare firmam was no more, than 
to reduce money to the true allay of Sterling ; but upon con>* 
fideration I think blanc money was truly fo much fine filver 
without any allay, and that the true allay of Sterling lilver 
or the antient llandard was twelve penny weight only of 
copper to every pound weight of filver ; and therefore he, that 
upon his refervation was to pay one hundred pounds of blanc 
money, was to anfwer to the king upon every pound of Ster- 
ling money one ihilling to countervail the value of the allay 
of copper in every pound weight troy of filver. 

And hence it is, that the farms of moft corporations an^ 
tiently let with liberties, if one hundred pounds per annum 
were referved, uiually anfwerd one hundred and five pounds, 
the five pounds being to anfwer the allay of one of copper 
in the whole quantity. 

21 H". 3. in compoto comitatus "Nortli ton fumma totalis 102/. 
3 X. "J d. de quo 4 /. 9 J. 4 ^. blanc, qu^e funt extenf^ ad /\L i 3 j-. 
<^d, fubtrahuntur ad perficiendum corpus comitatus, i^ remanet 
c)"! l. I 3 J. 10 d. {a) de quibns refpondet de prqficuo in magna 
rotulo. 

Clauf. 1 9 H. 7^. p.i.m. 2 . Sciatis quod pardonavimm dile6i:<c ^ 
fideli noflr<6 A. comitijjle Pembroch centum triginta ^ quinqu^ 
Ubras blanc, quiQ extenf^ funt ad 141/. i 5 j. 

13 £. 3. m cow/)(?fo Bedford ^ Bucks, Nicholaus BafTelew 
1 8 /. 4 5. j\d. numero pro 17/. 7 i^. blanc. 

That of 19 H. 3. exa6lly anfwers twelve pence per pound, 
which amounts to fix pounds fifteen fliillings, and added to 
one hundred thirty-five pounds make juft one hundred forty- 
one pounds fifteen fiiillings. 

And the other eftimate is very near the fame account, ba- 
ting the difficulty of fmall fraftions, four pounds nine lliillings 

and 

{,0) This Ihould be 97/. ^ s. 10 4, 



2o8 Hi/loria Placitoriim Coronal. 

and four pence, with the adding of twelve pence for every 
pound to make it Sterlings amounts to about ibiir fliillings and 
lix-pence, which added to four pounds nine Shillings and four 
pence make four pounds thirteen lliillings and ten pence ; fo 
the allay of Sterling at that time feems to be twelve pence of 
copper to every pound of lilver. 

llie fum therefore is, i . That blanc fame or blanc money 
was the eftimate of money in pure filver without allay, and 
accordingly it Was to be anfwerd, vizj one hundred pounds 
blanc was to anfwer one hundred and fi\ e pounds numero. 
2. That 3. fa-me or fum of money numero was fo much Ster- 
ling money according to the ftandard of thoie times. 3. 1'hat 
the llandard of Sterling money in thofe times was finer than 
it hath been fince the time of Edward I. namely Sterling was 
then eleven ounces eight penny weight finer filver, and twelve 
penny weight of allay. 4. 1 hat when at the exchequer they 
burnt the money to make alfay of it, in cafe twenty ifiillings 
mimcro were referved, it fufficed if it held the allay of Ster- 
ling, ri^. eleven ounces, eight penny weight of pure filver, 
and twelve penny weight of allay ; but if it were referved 
blanc, then tho good Sterling was brought to the teff, yet it 
went for lefs than Sterling by twelve penny weight in every 
pound, and therefore they were to add five pounds in the 
hundred to make it up blanc. 5. But when this probation 
grew troubleiome and Sterling money was well eftablilhed, 
then they, that were to pay one hundred pounds blanc, paid 
one hundred and five pounds Sterling, as the common elfimate 
of blanc money : it feems that in king Johns time the ffand- 
ard of Sterling money was far lower and worie, than at any 
time before or after, efpecially towards the latter end of his 



rejgn. 



The borough of Wich was antiently from the conqueft til} 
1 7 Johann. held at the yeaily rent of eighty pounds per annum 
blanc, which was anfwerd by the iherift in the times of Hen" 
7y\l. and Richard I. 

7 Johann. the king granted the borough of Wich to the 

town at the farm rent of one hundred pounds Sterling : in 

4 the 



Hifloria Placitorum Corona. 20p 

the pipe-roll of 24 H". 3. homines de Wico reddunt compotum de 
iQcl. numero, pro 80/. blanc, which imports thefe iums to 
be equal, and afterwards 4 ^ H. 3 . homines de Wico reddunt 
compotum de 80 /. blanc, qux fimt extenfs ad^^l. and in 17 
E. 3 . this eighty-four pounds was raifed to eighty-nine pounds 
five Ihillings numero upon the extent, which ferme of eighty- 
nine pounds five Ihillings they have ever lince anfwerd ; 
whereby it .appears the ftandatd of Sterling Was but low in 
king Johns time, for eighty pounds blanc was in his charter 
eifimated at one hundred pounds Sterling : agaiti it Was high 
in 43 H. 3. vi-^i. after the rate of twelve penny Weight of 
allay in a pound of fine fdver, for there eighty-four pounds 
Sterling is rated to be eighty pounds blanc ; and in Edward III. 
the Itandard was lower, than twelve penny weight of allay^ 
vi^. above twenty-four penny weight of allay and more in a 
poimd weight of fine lilver ; but afterwards raifed to eigh- 
teen penny weight of allay towards the latter end of his 
reign, which hath hitherto continued as the true ftandard of 
Sterling filver. 

Thefe curiofities, tho they be not much in life at this 
day, yet they are fit to be known for underftanding the 
old rolls. 



Hhh CHAP. 



ZIO Hijloria Placitorum Cor once. 



CHAP. XIX. 

Concerning the counterfeiting of the king s 
coin lohat it is, ivhat the penalty thereof 
antiently, and ivhat at this day, 

HAvIng taken this compafs I now defcend to the offenfe it- 
felf, wherein I Ihall conlider, i . What is the coin or 
money of the king. 2. What a counterfeiting thereof. 
3. What the pimifhment before this ftatute. 4. What the 
punilliment lince this ftatute. 

I. What Ihall be faid the king's money. 

The money of a forein kingdom is not the king's money 
within this a6l, and therefore at common law the counter- 
feiting thereof was only punifhable as a cheat ; and now by 
the ftatute of 1 4 £//^. cap. 3 . it is made mifprilion of treafon 
to counterfeit any forein coin of gold or filver, tho not made 
current here by proclamation. 

The money of a forein kingdom made current by procla- 
mation, tho it be now as to all civil refpe£ls the proper mo- 
ney of this kingdom, yet as to the crime of treafon it was 
not the king's money within this a£l. 

And therefore a fpecial ftatute was made, rv'^. i Mar» 
cap. 6. that if any perfon fallly forge or counterfeit any iuch 
kind of coin of gold or lilver as is not the proper coin of 
this realm, and is or fliall be current within this realm by 
the confent of the queen, her heirs or fucceflbrs, then fuch 
offenfe Ihall be judged high treafon. 

This confent cannot be but under the great L^;!, vii^. by 
proclamation and a writ under the great leal annexed there- 
untOj or fome other fufficient notification under the great 
feal ; and it mutt be of money of gold or filver, which I take 
to be a denomination ex majore parte, if it be iuch a forein 
coin as is for the moft part of gold or filver. 

4 But 



Hi ft or i a Placitorum Coron^e, 21 1 

But even the counterfeiting in copper or brafs gilt, or in 
tin or alchymy, if the exemplar itfelf be of gold or filver, is 
within this a£l: of i M.ar. cap. 6. 

If the coin of Ireland doth not fubftantially differ in the 
fignature or impreffion from the coin of England, the coun^ 
terfeiting of that money here in England feems to be a coun- 
terfeiting of the king's coin here in England-, but if the ftamp 
or impreffion bear no fuch refemblance, as is eafily difcemi- 
ble, then it is confiderable, whether it be a counterfeiting of 
the king's coin here, for Ireland is a diftinft kingdom from 
England, tho part of the dominions of the crown of England, 
Yet it feems that it is treafon within the a£l of 25 £. 3. 
I. Becaufe the words of the ftatute are fa monoye, and not 
fpecially the money of England, and money coined by the 
king's authority in Ireland is fa monoye, tho it be not the cur-* 
rent money of England. 2. Becaule by the exprefs words of 
the ftatute of 2 5 Elini. the clipping of coin of this realm, or 
any the dominions thereof, is enabled to be treafon ; it is not 
to be fuppofed that the parliament would make the dipping 
of Irifl) coin treafon, unlefs the counterfeiting thereof were trea-» 
fon ; and with this the refolution of the cafe of mixt monies 
in Sir John Davyis reports agrees, vi-s^. that the imbafed coin 
ftampt for Ireland is lawful money of England within the con-* 
dition of a bond for payment of money in Ireland. 

What ihall we fay concerning the farthings and half*pence 
of copper newly minted in England and proclaimed as before 
to be current money, is the counterfeiting thereof treafon? 

It is true in antient proclamations for farthing^tokens it 
was not ufual to be, that it fliould be current money, but 
only that it ihould be ufed as tokens, and the punilhmenc 
of counterfeiters was either in the ftar-chamber, or by infor- 
mation or indiilment, and £ne and imprifonment in the 
king's bench. 

And yet it feems to me, that this proclamation makes it 
not the king's money within this a£l of 25 £. 5. i. Becaufe 
it is fo made only to a ipecial purpofe namely in receipts and 
payments under iix-pence, and not otherwife. 2. Becaufe 
here is no dilpeniation or non obflante of the ftatute of 2 5 

£. 5. 



Ziz Hijloria Placitorum Corona, 

£. 3. Again, when by the ftatute of 25 E. 3. cap. i ^. it is 
ena£i:ed, that the money of gold or fdver, which now run- 
neth, liiall not be impaired in weight or allay, we can hardly 
think it ever intended that the copper money Ihoiild be that 
inoney, which lliould be intended within the a£l made at 
the iame parliament touching treafon ; but qiure tamen. 

If money be decried and varies fignally from the ftamp 
and imprellion in the coin that is commonly allowed, this is 
not money within this a£l, for it hath loft its denomination 
and legitimation by the king's proclamation, (a) 

The money of an ufurper bearing his ftamp and effigies 
and infcription, is the king's money in the time of the 
lucceeding rightful king, till it be recald by proclamation. 
If upon the evidence againft any counterfeiter ot the king's 
coin, tho it be but of a late coinage or impreffion, it 
comes in queftion whether the coin, that is counterfeited, 
were the coin of this kingdom, it is not neceflary to produce 
a proclamation to prove its legitimation for thefe reafons ; 
I. Becaufe where there were proclamations of coin they are 
for the mcft part loft, if we Ihould be put to prove a procla- 
mation for the coins of queen Mary, queen Elizabeth, where 
Ihould we find them? 2. Becaufe in m.oft kings times there 
gre variations of the impreffions without any proclamation, 
or fo much as a new indenture between the king and the ma- 
fter of the mint. 5. Becaufe there are very few proclama- 
tions, except that before-mentiond in king James'?, time, that 
exprefs any more than the weight and allay, but the impref- 
lion or effigies is rarely, if at all, exprefled, and fo fuch 
proclamation would import little to alcertain the effigies or 
ftamps ; and for the fame reafon the indenture of the mint 
is not abfolutely neceflary, tho in fome cafes it may be iifefal. 
4. Becauie eipecially in antient coins ex diuturnitate temporis 
omnia pr^fummtur rite aSla, if proclamation or indenture be 
neceflary, it Ihall be prefumed in length of time, as a licence 
of appropriation fliall be prefumed by long continuance, tho 
not Ihewn. The 

(rt) For this reafon, wlien the broad neceflary by a fpeclal afl of parliament 

pieces were cried down, and the officers 6 Geo. II. c^/ z6. to make the coun- 

of the revenue charged to take them in terfeiting of them during that year trea- 

payment for one year after, it was thought fo n. 



hlifloria Placitorum Cor once, 213 

The queftion therefore, whether the coin that is counter- 
feited be the coin of this kingdom, is a queftion of faft, 
which upon evidence of common ufage, reputation, ^c. may 
be found to be Englijl) coin, tho no proclamation of it ex- 
tant. 

But it may be of fome ufe in cafe of newnefs of coin to 
produce the indentures, or the officers of the mint, or the 
ftamps here uled for the coin, and the like evidences of fa6l. 

But as to forein coin legitimated here it feems neceflary to 
iliew the proclamation together with the proclamation -writ, 
or a remembrance thereof; and this is exprefly required by 
the itatutes of 5 li^ 1 8 £//:^. for impairing or clipping forein 
coin. 

II. I come to the fecond confideration, what is a counter- 
feiting within this law. 

And before I come to particitlars it miift be remembrcd, 
that the misfeafances concerning coin refer to two forts of 
perlons ; fir[h to fuch as are authorized either by their office 
or by charter or by cuftom to coin money, monetarii, money- 
ers, minters ; or jecondly thofe, who do counterfeit or take 
upon them the ftamping of coin without fuch authority, 
counterfeiters, clippers, waffiers, ^c. 

Touching the former of thefe 3 H 7. 10. (/>), Si ipfe, qui 
facit monetam in Anglia authoritate regia infra turrim London 
vcl alibi in Anglia vel Calicia, illam facit minus in pondere per 
dimidium ordinationis antiqui ponderis, isfc. vel falfo metallo, ejl 
proditio, ^ tamen ipfi^ qui illam monetam utterant ligeis domini 
regis infra Angliam non fimt proditores nee proditio, fed mif- 
prifiu. 

But it is not every miftake in weight or allay, that charg- 
eth the moneyers with fo high a crime as treafon, for the 
mafter is chargeable by his indentures to a fine and ranfom 
for fome miifakes of this nature ; but it mull be a wilful 
grols proditorious doing it, for the indiflment runs proditorii, 
and fo it muft be proved, for it is difficult for the beft artifi 
to make every piece of the precife weight. 

I i i Touching 



214 Hifloria Placitoriim Corona. 

Touching others that either counterfeit or imbafe the 
coin. 

Firjl, There miift be an a£lual counterfeiting, for a com- 
pafling, confpiracy or attempt to counterfeit is not treafon 
within this flatute without an aftual counterfeiting. 

But if many confpire to counterfeit, or counfel or abet it, 
and one of them doth the fi£l: upon that counfel ling or con- 
fpiracy, it is treafon in all, and they may be all indifted for 
counterfeiting generally within this ilatute, for in fuch cafe 
in treafon all are principals. 

How far a receiver is a principal, videbimus infra Co. Pla. 
Cor. I 38. Dyer 296'. 

If J. counterfeits, and by agreement before that counter- 
feiting B. is to take off and vent the counterfeit money, B. is 
an aider and abetter to fuch counterfeiting, and confequently a 
principal traitor within this law j but if B. knowing that A. 
hath counterfeited money, put off this falfe money for him 
after the fa£l, without any Inch agreement precedent to the 
counterfeiting, he feems to be all one with a receiver of him, 
becaufe he maintains him. 

If A. counterfeit money, and B. knowing the money to be 
counterfeit vent the fame for his own benefit, B. is neither 
guilty of treafon nor milprilion of treafon, but it is only a 
cheat and mifdemeanor in him puniihable by fine and irnpri- 
fonment. 

But if B. know that A. counterfeited it, and doth neither 
receive, maintain or abet him, but conceals his knowledge, 
this is mifpriiion of treafon ; and with this difterence the 
book of 3 H. 7. above-cited is to be underftood, and lo it was 
ruled upon debate at the lellions at Netvgate Car. 2. ex libra 
Bridgman. (c) 

A. falhions flamps for the counterfeiting of money, but he 
is difcovered and apprehended before he hath actually coun- 
terfeited it ; this is no treafon within this ffatute (d), for tho 
he hath counterfeited the ftamps, yet he hath not counter- 
feited the money of England. 

A. coun- 

(c) Aug. 16 C-ar. z. in the cafe of Ri- ftatutes of S ^ $ PF. $. cap. 25. and 
clard Oliver, Kcl. 53. 7 Jnu- cup. aj. 

{d) I Rich, 3. 1, but is treafon by the , . 



Hifloria Placitorum Corojw, 219 

■ — 

A. counterfeits the king's money, but never vents it ; this 
is a counterfeiting, and treafon within this ftatute, and fo it 
hath been ruled Co. P. C. p. 1 6. 

A. counterfeits the coin of this kingdom or any forein 
coin of filver or gold of any forein kingdom (e\ and this 
counterfeiting is in another metal, as tin, lead, alchymy, cop- 
per gilt or filvered over, yet the former is treafon within the 
if atute of 2 5 E. 3 . and the latter within the ftatute of i Mar. 
If there be a lawful coin of this kingdom, and A. doth coun- 
terfeit it in a coniiderable meafure, but yet with fome fmall 
variation in the infcription, effigies, or arms, to the intent 
thereby to evade the ftatute, yet this is a counterfeiting of 
the king's money, and that intent doth unqueftionably ap- 
pear, if he vent it as true : vide fupra de private Jignetto. 
^^J^c.(f) 

The clipping, wafhing or impairing, ^c. of forein coin 
made current by proclamation moft certainly was not treafon 
by the ftatute of 25 E. 3. but was made treafon de novo by 
the ftatute of 5^18 £//;^. 

But whether the clipping, waftiing or impairing the pro- 
per coin of this realm for lucre or gain were treafons within 
this ftatute of 25 £. 3. or not, is a queftion that deferves 
confideration, which, tho it be now fettled by thofe ftatutes 
to be treafon, yet it is of moment to be known ; if it were 
and continues treafon by the a£l of 25 £. 3. then the judg- 
ment is only to be drawn and hanged ; if it be a new made 
treafon, then by my lord Cokes opinion the judgment muft be 
to be hanged, beheaded, and quartered, as in treafon for com- 
palling the king's death. Co. P. C. p. 17. 

I will therefore give the hiftory of this bufinefs of wafti- 
ing, clipping, i3^c. ab origine from the time of the ftatute of 
2 5 £. 3. for the hiftory of former tipiQS .4t common law will 
be gii^en in the next fe&ion. '' ' - 

It appears by the record of M. 3 i B. 3. coram rege rot. 1 8, 
55. Bucks, cited by Co. P.C.p.i-j. within fix years after the 
ftatute of 25 £. 3. that for counterfeiting and refedion of the 

king's 

(e) This muft be fuppofed to be fo- prifion by 14 £liz, front J>aret fii' 
rein coin current within the realm, for fra, 
to counterfeit other coin is only mif- (f) RohinfoTi's cafe, a Rol. Rej^. 50. 



Il6 Hijtoria Placitoriim Corona. 

king's coin the abbot of Mujfmden was adjudged to be drawn 
and hanged, but not quartered. 

By the ftatute of 5 H 5. cap. 6. clipping, waftiing and fi- 
ling of the money of the land is declared to be treafon, and 
the offenders to be traytors, and lliall incur the pain of trea- 
fon ; this was made to fettle the doubt, and not purely as a 
new law. 

The petition, upon which this a(9: was made, is more full 
than the aft, as it is printed, Rot. Pari. 3 H. 5. part 2. «. 4 c* 
" Item pryont les commons, qe come devant ces heures grand 
" doubt & awereftee ad efte, le quelle le tonfure, loture, 
*' filinge, 8z autre fauxifme de voftre monoy duiffent eftre 
" adjugge treafon ou nient, a caufe qe null mention ent eft 
" fait en la declaration des articles de treafon faits en le par- 
" lenient de voftre trefnoble befaiel Ian de fon raigne 2 ^. 
Plefe a voftre royal majeitee de ordeiner, declarer, & deter- 
miner en cefl: prefent parlement par authority dlcel, qe 
*' ceux, qe tondent, loient, filent, ou afciin autre fauxifme 
facent de voftre mony, foient adjugges traytors, Sc encur* 
gent la pain de treafon, li bien come ceux qe apportcnt 
faux money en Engleterre fachant la cltre faux, & qe celt 
declaration fi bien foy extende al tie Is tonfure, loture, & 
" fauxifme faits avant ces heures come a falre en temps avener. 
" Ro. Qiiant a le loture, toniiire & filtinge foit il declare 
" pur treafon. 

I^ota, A retrofpeft defired, which was not ufual, unlefs 
the law had held it treafon before. 

By the ftatute of 4 H 7. cap. 18. counterfeiting or forging 
of forein coin current here is ena£ted to be treafon, which 
before was neither felony nor treafon. 

By the ftatute of 1 E. 6. cap, i 2. it is enacted, that there be 
no other treafon nor petty treafon, but what was ordained 
by the ftatute of 25 £. 5. or by that aft ; and after certain 
new treafons enafted there is a provifo, that this aft extend 
not to repeal any aft of parliament coicerning the counter- 
feiting, forging, clipping, vvaftiing or filing any coin of this 
realm, or any coin of other realms made current here, or 
the bringing into the reabi any counterfeit coin. 

4 Ihis 






Hifloria P lack ovum Cor once. 217 

This provlfo was abfolutely necelTary in relation to the 
treafon in counterfeiting fbrein coin contrary to the ftatute of 
4 H. 7. cap. 18. becaufe a new treafon, but whether neceflary 
in relation to cL'pping or impairing the coin of England de- 
clared to be treafon by the ftatute of 3 /-/. 5. may bs doubt- 
ful upon what herein iifter follows, but certainly was very 
fit and convenient to avoid the queftion. 

By the ftatute of i Mar. cap. i. it is enabled, that no of- 
fenfe being by a£l of parliament or ftatute made treafon, pe- 
tit treafon, or mifprilion of treafon, by words, writing, cy- 
phering, deeds, or other\viie hovvfoever, Jliall be adjudged to 
be high treafon, petit treafon or mifprilion of treafon, but 
only inch as be declared and exprefted to be treafon, petit 
treafon, or miiprifion of treafon in or by the aft of parlia- 
ment of the twenty-fifth year of king Edward III. concern- 
ing treafon, nor any pains, penalty or forfeiture to enfue 
upon any offender In treafon, petit treafon, or mifprilion of 
treafon, than luch as are ordained by that ftatute ; and all 
offenfes made felony or pr^munire lince i H. 8. not being fe- 
lony or within the ftatutes of praemunire before, and all arti- 
cles, <^c. concerning the fame are repeald. 

And yet it appears by the ftatute o^ i ilf iVh.^ M. cap. 
1 1, that then notwithllanding the ftatute of i Mar. cap. i. 
they did take the impairing as well as forging or counterfeit- 
ing the king's coin to remain treafon, for by that ftatute of 
1 isf z P. iS!' M. cap. 1 1 . that makes the importation of forein 
counterfeit coin to be high treafon it is provided, that any 
that fliall be accufed of the offenfes contained in the fame 
ftatute, or any other dffenfe concerning the impairing, coun- 
terfeiting or forging of any coin current within this kingdom, 
fiiall be indifted, arraigned, tried, convifled and attaint 
by fuch like evidence, and in fuch manner and form as hath 
been ufed in England at any time before the firfl: year of the 
^eign of king Edward VI. 

So that it ieems they took impairing of any coin current 
to be a treafon in force, but on the other fide it may be laid, 
fo they took alio the forging of any forein coin current to 
be treafon, when as yet the ftatute of 4 H". 7. concerning 

K k k forgii^ 



-■— « 



2l8 Hifloria Placitorum Corona. 



fors^ins; of foreln coin made current flood repeald by i E.6. 
but It is plain that no fuch confeqlience could be made, for 
by the ilatute of i Mar. [elf. i. cap. 6. forging of forein coin 
made current here is enafted to be treafon ; fo that as to the 
point of forein coin made current here, tho the llatute of 
4 H. 7. cap.i^. flood repeald, yet i Mar. cap. 6. flood in 
ibrce at the time of the making of the flatute o£ 1 (ff 2. P. 
^ M. cap. I I . 

Then enfues the flatute of 5 Eli^. cap. 1 r. which reciting 
in exprefs words, that the flatute of 3 H. f. concerning clip- 
ping, (yc. is repeald by i Mar. cap. i . and the mifchief that 
happens thereby enn6ts, " I'hat if after the fiifl day of May 
" next clippin^^, wafliing, rounding, or filing for wicked lucre 
" or gain's fake any of the proper monies or coins of this 
" realm or the dominions thereof, or the monies or coins of 
" any other realm allowd and fufFerd to be current within 
*' this realm or the dominions thereof, or that hereafter at 
any time fliall be lawful monies or coins of this realm or 
of the dominions thereof, or of any other realm, and by 
proclamation allowd and fufferd to be current here by the 
queen, her heirs or fucceflbrs, fliall be taken, deemed and 
adjudged by virtue of this a£l to be treafon, and the of- 
fenders, their counfellors, confenters and aiders fliall from 
" and after the firfl day of I^lay be deemed traytors, and fuf- 
" fer pain of death and forfeit their goods, and forfeit all 
" their lands during their lives only. 

" That all, that by charter have lands or goods of tray- 
" tors within their liberties, Ihall have thefe : a provifo that 
" this a£l: make no corruption oi' blood or lofs of dower. 

And the a6l of 1 8 Eli^. cap. 1 . declaring that the falflfying, 
impairing, diminilhing, fcaling or lightning of money was 
not within the acl: of 5 Eli^. which ought to be taken ftri^l- 
ly according to the words thereof, and the like offenles not 
by any equity to receive the like puniihments or pains, enacSls 
thofe offenfes to be treafon almofl in totidem verbis with that 
of 5 Eli^. with the like provifo ; and note this claufe in both 
ftatutes, and the offenders being lawfully thereof convi6i or at' 
tainted according to the due order and courfe of the larvs of this 
realm flmU fuffer the pains of death. Thefe 

3 



Hip or i a Placitorum Cor once. lip 

Thefe afls do in efFc£l declare, that this was iiiDt trealon 
within the ftatiite of 25 £. 3. and that the ftatute of 1 Mar. 
cap. I. repeald that declaration that was made in 3 H. <^. and 
gives the reafon, becaufe the h.\s being penal ought to be ta- 
ken and expounded H:ri£]:ly according to the words, and the 
like ofFenfes not by any equity to receive the like punifli- 
ment, and therefore lightning or fcaling Were not within the 
a61: of 5 Eli-:^. and neither within the a(3; of 25 H. 3. againil: 
coimterfeiting the coin. 

And yet it is obfervable, that thofe very judges, which were 
prefent at the mailing of the ftatute of 5 £//:<. yet upon a 
folemn conlideration in Wright's cale, T. 6 Eli^. Dyer 23c. 
did agree, that the judgment in treafon pro tonfura tnonct^ An- 
glU is no other but to be drawn and hanged, and accordingly 
judgment was given in that cafe ; and upon fearch of the 
precedents at 'Nen^gatc I find, that altho fome judgments in 
cafe of clipping of money are to be drdrpn, hanged, beheaded 
and quartered ; yet the greater number both of former and 
latter times have been only to be drawn and hanged (£) ac- 
cording to the judgment in 6 Eli^. 

And therefore my lord Coke, Pi. Cor. p.i"]- tho he agree, 
that the judgment for counterfeiting the coin of England is 
only to be hanged and drawn, as it was before the ftatute of 
2 5 £. 3. feems neverthelefs to be miftaken, when in the fame 
page he faith, that if any be attainted for diminiftiing the 
king's money upon the ftatutes made in the time of queen 
Mary or queen Eli^iabeth, becaufe it is high treafon newly 
made, the oftender ftiall have judgment as in cafe of high 
treafon, vi^. to be drawn, hanged, beheaded, difmembred, 
quartered, i^c. for the greater number and better precedents 
run only to be drawn and hanged ; and fo it was lately ru- 
led upon great conlideration in a cafe in the king's bench (h), 
tho perchance it is not error, whether the one judgment or 
other be 2;iven. 

Upon the whole matter therefore it feems to me, i. That 
altho it iliould be admitted, that clipping of the coin of Eng- 
land 

(g) Morgan's cafe, Cro.Car. 38?. jnan, i Ven. 154. a Lev. <jS. Rej?K» 

{h) The cafe of Selle-iv and Nor- 134. 



no Hifloria Placitorum Coron£. 

lind continued treafon notwkhftanding the ftatute of i Mar, 
that yet it is at this day treafon merely by the ftatute of 5 EliniL 
and therefore every indictment at this day ior clipping^ or 
impairing, ^c. muft purfue the words of the ftatutes of 5 Cf?* 
1 8 £//:<. and conclude contra formam flatiiti ; and this not only 
in the cafe of clipping of forein coin, \\diich certainly was no 
treafon after 1 Mar. and before 5 Elin^. but alfo in relation to 
the coin of England ;" and the reafon is, i . Becaufe this ftatute 
hath added a qualification to thefe treafons of clipping or 
lightning, vi^i. it muft be for lucre s fake, which muft be ex- 
prefty laid in the indi£lment, but need not have been fo laid 
by the ftatute of 3 H. ^. for tho perchance it was intended, 
yet it was not exprelTed in that ftatute, neither needed it 
then to have been in the indiftment. 2. Becaufe in exprefs 
words the ftatutes of 5 (b* 1 8 Eliii. fay, that it ihall be trea- 
fon by virtue of this ftatute, which is not a bare recital as in 
the beginning of the ftatute, that the ftatute of 3^5. was 
repeald ; but it is alfo an exprefs enafting claufe, which is in 
tfte£l: excluftve of any other law to make it treafon, but 
this of 5 or 1 8 E//;^. for thefe words are in both the ftatutes, 
3. Becaufe it extremely alters the confequences of a judg- 
ment in treafon, for here is no lofs of dower, no lofs of land 
but during life, no corruption of blood, io that thefe ftatutes 
did perfectly intend a total new eftablilliment and qualifica- 
tion of this treafon. 

2. That altho this be a new law, yet in as much as nei- 
ther at common law nor after the ftatute of 2 5£. 3. the 
treafons or cftenfes concerning money had any greater judg- 
ment, than fuch as is given in cafe of petit treafon, namely 
for the man to be drawn and hanged, the woman to be burnt, 
no higher or other judgment is to be given upon the ftatutes 
of the 5 th or i8th Eli^, and hence it is, that in the ftatute of 
25 £. 3. tho it rank counterfeiting money among high trea- 
fons, yet it alters not the judgment that was at common law, 
nay tho it be moft certain, that the ftatute of 2 5 £. 3. as to 
fome points of bringing in forein money be introdu£live of a 
new law, yet in as much as it concerns money, wherein the 
higheft judgment at the time of 25^. 3. was only that of 
3, pgtit 



Hiftoria Placitorum Coronae. 221 

petit treafon, it doth not inhanfe the judgment higher ; and 
accordingly it was refoh^ed upon great advice and conjidera- 
tion of precedents Car. i. Banco Regis in the cafe (/) for clip- 
ping Englifh coin. 

^. That upon any trial of counterfeiting, clipping, \va- 
fliing) iD'c. the coin of England or forein coin made current, 
there is no necefiity either upon the trial or the indictment 
of two witnefles, required in other cafes by the ftatutes of 
1 E. 6, cap. 1 2. and 5 E. 6. cap. i i . 

For as to the counterfeiting of money, or fo much as was 
treafon for impairing money, by \ iff 2 P.^ M. cap. 11. it is 
exprefly provided, that no other evidence lliall be requilite ei- 
ther upon the indictment or trial than was before the ftatute of 
I E. 6. and as to clipping and walTiing the \^ery ll:atutes of 
5 and 1 8 Eli^. in exprefs terms require only a conviCtion and 
attainder according to the order and courfe of the lan> ; an4 
therefore tho the ftatute of 5 E. 6. cap. 1 1 . ena6l, that two 
witneffes or lawful accufers fhall be required upon proceeding 
for any treafon, that now be or hereafter Ilia] I be, yet that 
a£l is thus far derogated by thofe two afls, that require only 
an indi£lment, a conviClion and attainder according to the 
order and courfe of the law generally; for tho it be held, 
that the ftatute of i ^ 2 P. <^ Af. cap. i o. that enafts, that all 
trials of treafon fliaJl be according to the courfe of the com- 
mon law, doth not take away the neceflity of two witnefles 
upon the indictment, becaufe that is a diftin£t thing from the 
trial. 1 4 Eli^. lord Lumleys cafe, Dy.99. Co. P.C. p.2$. yet the 
words (conviSiion and attainder after the order and courfe of the law) 
mentiond in the ftatutes of 5 and 1 8 £//'^. include the indi£l- 
ment as well as the trial, and therefore even without the aid 
of the ftatute of i ^ 2 P. ^ M. cap. 1 1 . reftores the whole 
proceeding according to the order ol the common law in cafe 
of clipping or walhing, as the ftatute of i ^ 2 P/;. ^ Mar. 
doth in exprefs words in cafe of counterfeiting. 

And note, upon the ftatutes of 5 and 1 8 £//^. tho Irifh coin 
be not current in England, when of a bafer allay, yet it is 

L 1 1 the 

(0 This I taVe to be the forecited cafe o{ Selleiv and Norman, 1 Fe».i^ 



llZ H'ljloria Placitonim Corona:, 

the king's coin^ and clipping or wafhing in England the coin 
of Ireland is treafon by thofe afts, for the words are the coin 
of this realm or dominions thereof which extends to Ireland. 

4. The fourth thing obiervable upon thefe ftatutes is, that 
the a6t of i Mar. cap. i . reducing all treafons to the ftandard 
of 2') J5. 3. doth not only repeal treafonsj that were newly 
enacled de novo, but fuch a£ls concerning treafon as were only 
declarative, as this of 3 H 5. among others. 

IV. The fourth thing, that I propounded to coniider, is the 
hiftory of the punifliment of counterfeiters, ilfc. of coin be- 
fore the ftatute of 2 5 E 3 . and how it hath ftood lince. 

In this kingdom and indeed in all kingdoms the counter^ 
feiting of" the king's money hath been in all ages crimen Ufe 
majeflatis {k\ tho in many of the old books (/) it comes un- 
der the general title of crimen falfi. 

But the punilKment in its kind and degree hath among u^ 
tcry much varied both in relation to the monetarii or money-* 
ers, that were intrufted with the making of coin, and others, 
that took upon them to counterfeit the king's coin : among 
the laws of king Athelfian, I. 19. fet down by Brompton, 
p. 843. Una moneta Jit in toto regni imperio, ^ nuUus monetet 
extra portum, fi monetarius reus fuerit, amputetur ei manus, ^ 
ponatur fupra monetae fahricam, accord Hoveden fub anno 1 1 27 J 
^ M. P'dx'is fub anno 1 1 25. (m) 

In the time of Henry I. it is written by Simon Bunelmenfs, 

^.214. Monetarii totius Anglia; principales deprehenji adulteri-^ 

nosj fcilicet non puros ex argento, fecijfe denarios, juffu regis fi- 

mul Wintoniai congregati omnes una die amputatis dextris eviran* 

3 tur ', 

00 By the old Roman law, ^li nvra- jejiath crimen com7nittW2t, SS? quicunqu6 

mos aurcos, argcnteos adulteraverir, la- folidoriim adulter foierit referiri^ jlam- 

verit, conflaverit, raferit, ccrruperit, vi- marintt extiftionilns mancifetur. Lib. 

iiaverit^'vidtiive principttmjlgnatainmo' IX. Cod. tit. m. /. 2. Ste aKo Jfllkin'i 

netav/t, frdster adtdterinanty reprohave- Legei Anglo-Sax. -p. 59. in notis. 

rit, honeftior in ifjfnlam deportandus, {I) SraBon, Lib. \\\. de corona, cap. ^. 

hiii/iilior out in 7iietaUiim daranandiis, §. r. Glanvil. Zib.XlY. cap. t. Flet. 

aw in crticem tollendus -J and whatever Lih.l. cap. zz. 

degree he was of, ejin bona fifco vindi- (^m) Leges Etheljlatti, /. 14. Wilk.Legi 

cantnr : kz Jnl.'Paidi fententias recep- Anglo-Sax. p. ■^f). See a.\fo Zeges Edgar i, 

ras, Zib.Y. tit. 12. 5. 12, and Lib.Y. /. 8. Conjlittitiones Ethelredi in fine, 

tit. 25. §. I. Afterwards by a law of Leges Cnuti, L 8^ 
ConJiantine^Cudendte pecunia obnoxiima- 



(I 

it 
ii 



Hifloria P lac it or urn Corouce, 225 

tw ; Bt ibidem p. 231. ^d falfos denarios fecerit, oculos i^ in" 
feriores partes corporis perdet -j and Knighton., p. 2377. H. i. 
fiatuity lit fares fufpendereniur, falfarii oculos tf genitalia amit' 
terent, iff ut denarii ^ oboli ejfent rotiindi. (n) 

Knighton^ p. 24^3. " Edwardiis primus tenuit parliamentum 
apud London^ fecit mutari mcnetam regni, quie iJlo tem- 
pore fait villter retonla & abbreviata, imde populus re^ni 
graviter conquerebatur, & rex x^eritatem inquirens, & 
" comperiens trecentos & plures de illo deli£lo & felonia 
" piiblice convi£los, quorum quidam fuerunt lulpenfi, qiii- 
" dam diftrafti & fulpenli fecundum delifti quantitatem & 
" qualitatem, &: ordinavit, quod deinde Sterlingus & quadrans 
" deinceps effent rotundi:" fo that clipping was then held 
treafon or at leaft felony. 

After the ftatute of 2 5 £. 3 . the punilhm.ent hath been 
conftantly to be drawn and hanged, becaufe that was the pro- 
per judgment of it before the making of the ftatute. 

And altho the courle hath been in treafons concernins the 
king's perfon not to allow the privilege of clergy, yet before 
25 £. 3. cap. ^. pro clero it had been thought and pra£lifed 
in antient time to allow the privilege of clergy upon an in- 
diflment for counterfeiting money, (o) 

But after that ftatute clergy was not allowable In cafe of 
Counterfeiting money, I9 H, 6. ^"j. b. Stamf. Pla. Cor. 1 14. ^. 
yet whereas in cafes of treafon regularly he that ftands mute 
mall be thereby convi£led, i 5 E. 4. 3 3.4. Stamf. Pla. Cor. i '50. a. 
becaufe not within the ftatute of Weflmin. i. cap. 1 2. {p\ yet 
we have fome hiftorical inftances, that upon indictment of 
counterfeiting coin the prifoner ftanding mute was put to pain 
fort ^ dure. Knighton tempore R. 2. fub anno 13^9. before 

Belknapj 

(jit)Wilk. Leg. HenA.f.-^oi^.fuh anno of felony and fedition in counterfeiting 

iio%. p. ■^0%. fub anno iiz'). the great feal j but in Thorpe'^ a^c, 

(0) For clergy was antientjy denied (TC 21 E. 5. Rot. 29. iiex) who was 
only in fuch treafons, as were immcdi- convifted of fedition in levying war, it 
ately againft the king's perfon, and there- was adjudged, that he could not be ad- 
fore Co. 'P. C. f. 16. clergy was allowed in mitted to his clergy : nota la diverjite j 
the cafe of counterfeiting the great feal. but the ^6 H. 8. cap. 13. takes away cler- 
See alfo the cafe of "Bur don., {T. i%E,z. gy in all cafes of treafon : vide a'litea in 
S.R. Rot. 25. Rex. South'ton) who was notis /. 185 iS iSd. 
admitted to his clergy on being conviftcd (/) 2 Co. Iiifl. 177, 



Z24 Hijtoria Placitorum Coronce. 



Belknap, Skiprvhh and others apud Lincoln feptem faljarii mo- 
ncu conviBi, qui fimid traBi fuerunt ^ fufpenji, ^ quidam vi' 
carius de Wintrlngham obmutejcens adjudicatus efl ad pcenam 
mutoriim ; but at this day the law is taken otherwife, and 
that landing mute amounts to a convi£lion of the crime. 

And in lliort at this day in all cafes of treafon for coun- 
terfeiting the coin of this kingdom, or of any the domini- 
ons thereof, or of forein coin made current by proclamation, 
or for walhing, clipping, fcaling, impairing, or diminifhing 
the fame, tho moft of thefe are made treafon by new adis 
of parliament, as i Mar. cap. 6. ^ Eli^. cap. i i. 1 8 Eli^. cap. i . 
yet the judgment is only for a man to be drawn and hanged, 
for a woman to be burned, and fo, (as I faid) it was fo- 
lemnly refolved. 

And the reafon is, becaufe tho moft of thefe be new 
treafons made by a6l of parliament, yet they are all in their 
matter concerning money, wherein the judgment at common 
law was, as in cale of petit treafon ; and that judgment was 
not altered by 2 5£. 3. in cafe of counterfeiting, which is 
the higheft oft'enfe concerning money, and therefore is not 
to be exceeded by the intent of thofe ftatutes, which brought 
leller ofFenfes concerning money, as clipping, into the fame 
rank of offenfe with counterfeiting, for they are all of- 
fenies in pari materia, and fo Ihall have a parity of judg- 
ment. 



CHAP. 



Hijforia Placitorum Coronce. ±z% 



CHAP. XX. 

Concerning treason in bringing in falfe 

money. 



TH E next point of treafon is, if any man bring in falfe 
money into this realm counterfeit to the money of Eng^ 
land, as the money called Lufljborough or other like to the 
faid money of England, knowing the money to be falfe, to 
merchandize or make payment in deceit of oiir lord the king 
and of his people. 

Touching this point of treafon thefe things are obfer< 
vable. 

I. That the money in this cafe mull be imported from a 
forein nation, for here it is not the counterfeiting, that is the 
treafon, but the importing ; and yet it feems by the general 
words of the Itatute of 3 5 R 8. cap. 2. the counterfeiting it- 
felf, tho out of the kingdom, may be tried in the king's 
bench, or before fpecial commiflioners, as well as any other 
treafon. 

But at common law the coimterfeiting beyond the fea 
feems not to have been fuch a treafon as could be tried here, 
as treafon in adhering to the king's enerriies might have been^ 
and therefore the importing was made treafon by this a61:. 

Alcho Ireland be within the ftatute of 5 5 H. 8. cap. 2. for, 
trial of treafon in compafling the king's death or levying of 
war, as is before obferved, and therefore as to that purpofe 
out of the realm of England, yet it hath been held upon the 
obfcure book of 3 H 7. 10. that an importation of counter- 
feit coin from thence into England is not treafon here withia 
that llatute, principally becaufe the counterfeiting itfelf is pu- 
hilliable by the llatute of 25 £. 3. which is of force in Ira" 

M m m land* 



Zl6 Hijloria Placltonim Corona. 

land. Co. P.C.p.i2. And the like reafon holds for the Ip of 
Man ; before this ftatute there was fome difiiciilty what this 
crime fhould be. 

In the time of king Edward I. there were three great in- 
conveniences touching coin imported from forein parts, fome- 
times they imported true coin of England^ but ilich as was 
clipped, ibmetimes they imported counterfeit coin like to the 
coin of England, but of a Safe allay ; and raoft times they 
imported ibrein coin, which yet palled between merchants, 
and filled the kingdom with bad money to the detriment of 
trade and the king's coinage. 

And to remedy thefe inconveniences were thofe three or- 
dinances made, called Statutum de moneta magnum, de moneta 
parvum, iff Articuli de monet^, by which fearches were ordain- 
ed of all coin imported, that if any dipt money or any fo- 
rein money, other than of England, Ireland or Scotland, were 
taken, it Ihould be pierced and redeliverd to the owner, if 
it were falfe it Ihould be detained, and the bodies of fuch as 
had falfe or dipt money to be attached {a), and if iufpicious, 
detained till he produce his warrant ; that money be received 
by weight : and by the fecond, vi^^. Statutum de moneta parvum, 
that if any merchant brought in dipt or counterfeit money, 
for the firll offenfe he lliould lofe the money, for the fecond 
he fhould lofe his money and goods, and for the third de 
corporikis fuis ^ de omnibus bonis ^ catallis fuis nobis totali- 
ter incurratur ; that if they were not merchants, they fhould 
pierce the dipt and counterfeit money and fend it to the ex- 
change, otherwife in wliofe hands foever fuch money fhould 
be found, it fhould be forfeited to the king ; and by Articuli 
de moneta the feveral faulty coins, forein and others, that had 
obtained in the kingdom by common ufe are defcribed and 
decried. 

By the ftatute of 9 £. 3. cap. 2. item, " That no falfe mo* 
" ney or counterfeit Sterling be brought into this realm or elfe- 
" where within our power upon forfeiture of fuch money." 
I By 

GO Sec an ordinance to :his purpofe in the reign of king j'ohn. Wlk. Leg. An- 
glo-Sax. J>. 5 < 0. 



Hifloria PlacitoYum Corojtie. 2Z7 

By an a£l or rather an advice. Rot. Pari, ij E. ■^. n.i$. qe 
nul joit fi hardy de porter fau^e ^ malveis monoie en roialme fur 
■peyn dc forfeiture de vie i^ membre. 

Rot. Pari loE.yn.i'). A complaint of importation of 
falfe money, ^fpecially the falfe money csiled Lujjheburnes, 
praying de pmir ceux^ qe font trove^ culpabk':^ de tapport, oti 
de le refceit de eux fachant le fauxifme, par judgment come faux 
monyers. 

Ro\ ^umt a cefl point de ceux, qe apportent la faux mony 
deins le realme, i^ qe le ufent per voy de merchander em fachaiant, 
le roy roet, quils eient judgment de vie ^ de membre, come 
faux monyers, folonc la leys ^ cuflomcs de realme ; but this 
was never drawn up into an a£l ; yet Rot. Pari. 2 i £. 3. «. 1 9. 
the commons defire the penalty may ftand according as was 
ordained in the laft parliament, and that it extend as well to. 
the time paft as to come, ^ qe nul chartres de pardon foient 
grant de dit fauxime ^ treafon : they were anfwered, that the 
juftices lliould be ailigned to enquire of the time paft and to 
come after this acl, and to do right, and that pardons be not 
granted cy legerment. 

By which it appears, that it was never fettled to be trea* 
fon till 20 £. 3. and even from that time there was but a 
faint proceeding upon that offenfe. 

But this ftatute of 25 R 3. was that, which made the fi- 
nal fettlement in this point. 

But this makes only the apporters thernfelves, their aiders, 
abettors, and alTiftants, traytors, not thofe, that receive it 
at the fecond hand; and this ftands with reafon and is con- 
fonant to the ftatute of moneta before cited, which rendred 
the merchants ofFenfe puniftiable at the third time with death, 
but fubjefled others only to lofs of the money, if not pierced 
and carried to the exchange. 

II. That it be counterfeit after the fimilitude of the mo» 
ney of England, otherwife it is not trealon : the bringing in 
of money counterfeit after the iimilitude of forein coin made 
current here by proclamation is not treafon within this a6lj 
but by the ftatute of i (i^J* 2 Ph. i^ Mar. cap. 11. it is enabled, 
*' That if any perfon after Jan. 20. next ftiali bring from 

" the 



ZZ8 Hifioria Placitorum Corona. 



u 
li 

(C 

u 



the parts beyond the fea into this realm or into any of the 
dominions of the fame any faUe and counterfeit coin of 
money being current within this realm as aforefaid, (vi-;^. 
by the fufferance and content of the king and queen,) 
(which extends to the fuccejfors) knowing the fame coin or 
" money to be falfe and counterfeit, to the intent to utter 
or make payment of the fame within tliis realm or any 
the dominions of the fame, by merchandizing or other- 
wife, that every fuch offender, their counfellors, procu- 
rers, aiders and abettors Ihall be deemed traitors, and for- 
** feit as in cafe of high treafon. 

And by the ftatute of i^EIi^. cap. 3. forging of forein 
coin not current by proclamation, as well without the realm 
as within, is made mifprilion of treafon ; but that a6t extends 
only to the counterfeiting, whether within the realm or with- 
out, but not to the bare importing ; the inttance that is here 
given is of LicJJjboroughs, which were a bafe counterfeit coin 
after the fimilitude of Engliffj coin. 

Other monies both before and after this ftatute there were, 
fome counterfeit, fome dipt, fome of bafer metal, fome fo- 
rein, which had their feveral courfes and periods in this realm : 
'Pollards and Crokards, that obtaind fome time in Edward I. 
but were after decried by proclamation 24 £. i. vide Dy. 8 i. 
Other feveral bafe coins in the fame king's time mentiond in 
the ordinance of Articuli de moneta, black moneys which had 
been formerly current here, recald by the ftatute of 9 JS. 3 . 
de moneta, cap. 4. Suskins, Dodkins, and Gaily half-pence re- 
cald by the ftatute of 1 1 H. 4. cap. 5. 3 H. 5. cap. i. Scotch 
money recald by the ftatute of 3 H. 5. cap. i. Blankes re- 
cald by the ftatute of 2 H. 6. cap. 9. and feveral penalties, 
fome g;eneral, fome of felony applied to them ; but thefe 
were for the moft part out of this ftatute, and obtaind here by 
connivence, till recald. 

III. The next qualification of this offenfe is, that the 
bringer in muft know it. 

IV. The next qualification is, that he muft bring it to 
merchandize or make payment thereof in deceit of the king 
and his people. 

1 Counter- 



Hijioria PlacitoYum Coronce. zzp 

aC— I- — - ■ ■! ■ ■ ■- -■ — -....■ I I 

Counterfeiting of the king's coin without uttering of it is 
treafon ; clipping, walhing, ^c. by the ftatutes of 5 and 1 8 
£//:^. is treafon, but it muft be for gain or profit, and here 
the importing is not treafon, unlefs it be to merchandize or 
utter it. 

And hereupon my lord Coke {b) cOnckides, that he muft 
merchandize therewith, or make payment thereof; it is a fa- 
vourable expolition, but the ftatute is not, that if he import 
and merchandize, but pur merchandl-xier ^ payment faire^ if it 
were to that intent, the ftatute makes it trealon. 

And by the ftatute of i <^ 2 P/;. ^ Mar. cap. 1 1 . touching 
importation of coin counterfeit of forein money, it muft be 
to the intent to utter and make payment of the fame ; and 
tho the beft trial of an intention is by the a£l intended wdien 
it is done, yet the intent in this cafe may be tried and found 
bv circumftances of fa61:, by words, letters, and a thoufand 
evidences befides the bare doing of the fa£l:. 

As in cafe of thofe many atls, that prohibit lading of wool, 
gold, ftlver, ^c. with an intent to tranfport the fame, 
whereby fome are made felony, ^c. the intent ftiall be tried 
in thofe cafes (being joined with an aft) by circumftances, 
that evidence the intent of that ailion, for tho bare inten-^ 
tions cannot receive any trial, yet intentions joined with an 
overt-aft, as here importation, may be tried and difcoverd 
by circumftances. 

So that it feems the very importing of counterfeit money 
pur merchandiser^ i^c. to the Intent to merchandize or make 
payment therewith, tho no fuch merchandize or payment be 
actually made. Is treafon by this ftatute, if the party import- 
ing know it to be fuch, and that as well his intent as his 
knowledge lies in averment and proof 

And thus far concerning treaions relating to money. 

Qa) Co. T. C. />. iS. 



Nnn CHAP. 



Z^o Hiftoria Placttorum Cor once. 



CHAP. XXI. 

Concerning high treason in killing the 

chancellor, &c. 



I 



Come fliortly to treat of the laft kind of high treafon de* 

clared by this aft. 

Si home tuaft chancellor, treafurer, ou juflice noflre feigneur le 
ray del un banck ou del autre, juflice in eyre, ou de ajjifes, ^ 
touts autre jujlices ajfignes de oyer ^ terminer, efieant en lour 
place fejant lour office. 

I. This ftatute extends only to the a£lual killing of fome 
of thefe officers, and therefore a confpiring to kill any of 
thefe without aftual killing of any of them is not treafon ; but 
if many confpire to do the aft, and one of the confpirators 
aftually do it, this feems to be treafon in them all, that are 
abettors or counfellors to do the aft, as is before inftanced in 
levying of war, and therefore there is a particular aft made 
3 R 7. cap. 14. that makes the confpiring the death of a 
privy counfellor to be felony, (a) 

If a man only ftrike or wound one of thefe officers, tho 
in the execution of his office, this is a great mifprifion, for 
Vi'^hich in fome cafes the offender fhall lofe his hand (I;), as 
was once done in the cafe of my lord chief juftice Richard- 
fon fitting as juftice of oyer and terminer, but it is not trea- 
fon within this aft. 

2 11. This 

((?) But this a£t extcncis only to fuch Harlcy, Efq (afterwards earl of Oxford) 

offenders, as are the king's fworn fer- being ilabd by v^«/Z70«j)' G«//frt;-^, who was 

vants, whofc names are entered in the then under examination before a commit- 

cheque-roll of the king's houfliold, and tee of privy council, it was enafted, 

who is under the itate of a lord ; and " That whoever /hould unlawfully at- 

according to lord Coke's opinion the con- " tempt to kill, or fliould unlawfully aP 

fpiracy mult be plotted to be done within *' fault, ftrike or wound a privy counfel- 

the king's houfl-iold. Co. 'P. C /. 59. by " lor in the execution of his office, /hall 

this ftatute the offender was not depri- " fuffer death as a felon without benefit 

ved of the benefit of the clergy ; but by " of clergy." 
J J/w. caj>. 16. on occafion of Rolcrt [1) 3 Co, /t/?. 140, 



Hijioria Placitorum Corona. 23 1 

II. This ftatute extends to no other officers but thofe a- 
bove-named, and therefore not to the lord fteward, confta- 
ble, marfhal, admiral, or lord of parliament, tho in the ex* 
ercife of their offices ; it may be murder, but not treafon. 
Co.?.C. jf). 18. 

A juftice of ipeace, tho there be in the end of his com- 
miffion of the peace, nee non ad diver ja felonias, malefaSia au' 
diend iff terminand , is not a juftice of oyer and terminer within 
this a6l, for the juftices of oyer and terminer are intended 
fuch, as have their commiffion ad audiend' iff terminand", iffc. 
as the principal defignation of their office ; and thus it is in 
divers llatutes alfo, that fpeak generally of juftices of oyer and 
terminer, {c) 

But a juftice of peace may be alfo a juftice of oyer and ter-^ 
miner by another commiffion, as many times they are, and 
then they are within this ftatute, when they are lifting by vir- 
tue of that commiffion. 

The lord keeper, when there is a lord chancellor alfo, as 
there may be both at the £ime time, feems not to be within 
this law \ but if there be no lord chancellor, then the lord 
keeper is within this ait, for by the ftatute of 5 £//^. cap. 1 8. 
their office is declared to be the fame to all intents and pur- 
pofes, as if the lord keeper were lord chancellor. 

But the commiflioners of the cuftody of the feal {d) or 
for the treaiiiry are not lord chancellor or lord trealurer 
within this a£l:, and therefore at fuch times as the treafury 
hath been in commiffion thofe commiiffioners have not the 
fame power as the lord treafurer, as in cafes of writs of er- 
ror by the ftatute of 31 £. 3. cap. 12. (e) in the exchequer 
before the lord chancellor and treafurer, and fo for the fet- 
ting of the prices of wines by the ftatute of 7 E. 6. (f), 
neither do they lit as lord treafurer in the exchequer-cham- 
ber, as judges of equity. 

It 

CO 9 Co. iiR. If. Cro. Eliz. 87, ^97. (f) See alfo u F.liz. cap. r. 

(d) But it fhould fecm, that now they ( f) This power is given by 97 //. 8. 

are within the aft, fincc by i Tf. ^ Af. cap.z'i,. which flatufe was revived by 

yfj(7r I. Cisr/. 2 1. their office is declared to be \\^q ^^ ^ 6 F.d. 6. cc.p. \i. but there is 

the fLime, and they to have the fame jurif- nothing of it in the 7 E- C. 
dI£tionand privileges, as lord chancellor. 



232- Hijloria Placitonim Corona, 

It extends not to the chancellor and under treaiiirer of 
the exchequer, nor to the chancellor of the county palatine 
of Lancafler, nor to the lord privy feal, for tliefe are fpe- 
cial officers and ol a lower rank, than the lord chancellor or 
treaiurer. 

III. The third qualihcation of this treafon isj that it muft 
be efleants en lour places., fejant lour offices ; wherever the feal 
is open, whether in the court of chancery or in the chan* 
cellor's houfe, the chancellor or keeper there iealing writs is 
feant en fon place, fejant Jon office. 

And the fame law ieems td be, if he be hearing of 
caufes in his chamber, for tho antiently the heating of caii- 
fes upon EngliJJ? bills was rare, yet uie hath fufficiently ob- 
taind to give it the ftyle of fejant jon office. 

^<c/v, touching the lord treafurer's difpatching bufinefs 
in his houfe, whether this be feant in fon place, but fitting 
in the court of exchequer, or exchequer-chamber, or in the 
flar-chamber, when it flood, had been feant in fon place, ^c. 

The place for the juflices of the feveral courts are the 
courts themfelves, where they ufually or by adjournment lit 
for the difpatch of the bulineis of their courts. 

And fo much Ihall fuffice for this treafon alfo. 



CHAP. 



Hijloria Placitorum Cor once. 235 



CHAP. XXIi. 

Concerning principals and acceflaries /;; 

treafon, 

BEfore I leave the difcourfe concerning high treafon it is 
neceflary to conlider, whether or how all are principals 
in high trealon. 

In cafes of felony there are two forts of principals, -z;/;^. 
principals in the firft degree, that do the fa£t, be it in mur- 
der or any other felony, and principals in the fecond degree, 
that are prefent aiding and abetting the felony. 

And regularly in felony there are two forts of acceffaries, 
I . Acceffaries before the faft, which are not prefent, but yet 
coun'felling, commanding, or abetting the felony, but in 
manflaughter no fuch acceffaries can be before : and 2. Ac- 
ceiTaries after, fuch as knowing a felony to be done by fuch 
a man do yet receive or maintain him, unlefs it be a wife 
receiving her hufband {a) ; of this hereafter in its due place. 

Now in treafon, thus far it is agreed of all hands, i . I'hac 
there are no acceflaries a parte ante, but all fuch as counfel, 
confplre, aid, or abet the comimitting of any treafon, whe- 
ther prefent or abfent, are all principals. 2. It is likewife 
agreed of all hands, that in all treafons, except that which 
concerns counterfeiting the great or privy feal, or money, 
whoioever knowingly receives, maintains, or comforts a trai- 
tor, is a principal in high treafon. Co.P.C. 16, 138. and fo 
it is there cited to be refolved in the cafe ot Abinfton. 
who received Garnet, that was one of the confpirators in the 
powder treafon : that which hath occaiioned the doubt hath 
been the relolution in Conyers cafe, Dy. z^6. who was in- 
dited, that proditorie rcceptdlfet, ^c. Fairfax, jcicns ipjum di- 
verjas pecias mmet.i- ad JimiUtiidinem monet^ Angliic vocat' Ihil- 

O o o lings 

o 

i/?; Fiic fup-a p. 47^ 



2^4 Hi florid Placitorum Corona. 

lings de fdlfo nietallo fahricaffe ; upon this he and others were 
difchargedj becaule it was miipriiion of treafon only, and 
not treafon ; but this opinion is contradi6led by my lord Coke, 
PI a. Cor. j!>. 1 38. and yet it is faid by the fame author, Pafch^ 
9 Jac. I 2 Rep. 2 I . the receiver of a counterfeiter of the fcal 
or money is no traitor. 

We will fee therefore in what cafes an aft dx pofi faBo 
will be treafon in relation to the aid of him, that commit- 
teth this or any other treafon. 

A man is imprifoned for treafon, the gaoler voluntarily 
fuffers him to efcape, this is treafon in the gaoler. Stamf. 
PL Co. ^z. 

If a perfon be arretted for treafon, he that refcues him is 
guilty of treafon. 

And fo if a man be imprifoned for treafon, and another 
prifoner or any other perfon breaks the prifon, and lets out 
the party imprifoned for treafon, this is treafon in the party 
that breaks the prifon. i H.6. 5. Stamf. PI. Cor. 32. nay, if a 
ftrangcr breaks the prifon, and lets out one there imprifoned 
for treafon, this is held treafon, tho he that breaks the pri- 
fon knew not that any there was imprifoned for treafon; fo 
refolved by ten judges, P. 1 6 Car. Croke 583. Benfled's cafe ; 
but my lord Coke holds, that he muft be knowing it. Co. Mag. 
Cart. Juper fiattitum de frangentikis prifonam. (b) 

Rot. Pari, z H. 6. w. 18. in fchedula. Mortimer was commit- 
ted to the Tower of London for fuipicion of treafon ; and 
2 3 FeK 2 H. 6. was indi61:ed, quod per eovinam, confadera- 
tionem ^ ajfcnfum Willielmi ICing, &c. pro diverfis denario- 
rum fummis eidem Wiliielmo King per pr^fatum Johannem 
Mortimer p-omijfis, idem Johannes, turrim prxdiB' falfd ilf 
proditorie fregit : the indiftment was removed into parlia- 
ment, and John Mortimer likewife brought into the par- 
liament : the commons defired the duke of Gloucefler (then 
commiifiond to hold the parliament) that the indiftment 
might be affirmed, and that John Mortimer de pr^diBis pro-' 
ditionihus iy feloniis convincatur: thereupon the duke and 
lords at the requeft of the commons itffirm the indift- 
4 ment 

■ (Z-) a Co. I:;Jl. 5j>o. 



I 



Hijtoria Placitorum Coronce. 239 

ment by a£l: of parliament, ^ qmd pr^di6lus Johannes Morti- 
mer de proditionibm i5f feloniis pr^diciis convincatur, ^ qmd 
trahatur per medium dvitatis, <^ fuper f ureas de Tyburne jujpen- 
datur, i^ ad terram projiciatur, isf cuput ejus amputetur, ^ in- 
teriora fua comkirantur, iS'' corpus ejus in quatuor partes divida- 
mr, iff caput ejus ponatur fuper portam pontis London, ^c. 
^ quod bona isf catalla, terras iff tenementa fua, tarn in dpmini' 
CO, quam in reverfione, domino regi forisfaciat. 

So that it feems, tho the ftatute ^ 25 £. 3. fpeak not of 
thefe offenfes, yet they are in a Manner incidents, and virtu- 
ally included within the original ofFenfe, and therefore thefe 
caies of voluntary permillion to efcape, refcue, breach of 
prifon, tranflate the original offenfe upon him, that commits 
it by the common law ; and thefe would be treafons as well 
in the cafe of counterfeiting of coin, as other treafons. 

But herein thefe things are obfervable, i. This judgment 
in Mortimer ?> cafe is not at all now in force, nor binding, for 
the ftatute of i Mari.e repeals not only enabled treafons, but 
declared treafons, that were not within 25 £. 3. and 2. That 
therefore at this Day, if one be committed for iufpicion of 
treafon, and another break gaol to let him out, yet unlefs 
the party im.prifoned were really a traitor, this is no treafon 
at this day. 3 . But if he were really a traitor, then break- 
ing of the priion to enlarge him is treafon, and a treafon of 
a greater guilt, than a knowing receiver, and then it is trea- 
fon by virtue of the common law, for it is a kind of inci- 
dent ; the like of a receiver of a traitor, or a gaoler that 
fuft'ers him Aoluntarily to efcape, thofe are incident treafons 
by the common law, and virtually included in the ftatute of 
25 £. 3. as well as a receiver of a traitor knowingly. 

l"he dift'erences therefore feem xo be thefe, which ftate 
and reconcile the whole matter. 

Firfi as for new treafons. If an a£l: of parliament ena£l a 
new treaion, and that the offender, his couniellors, abetters, 
and aiders thereunto Ihall fuffer as traitors, this doth not 
make receivers or comforters after the fa6l guilty of treaion, 
for exprejim facit csjfurc taciturn , fuch a claufe we lliall 

fnd 



Zl6 Hiftoria Placitorum Corona. 



find In the ftatute 23 Eliiii. cap. 2. for a new felony (<:), 
5 Ellz^. cap. I . in cafe of a pummire. (d) 

If an ofFenfe be made treafon in the offender, his procurers, 
coiinfellors, abetters, confenters, (without the word thereunto,) 
yet it feenis to me for the fame reafon it doth not make the 
knowino- receivers traitors, unlels the words receivers or 
comforters be alfo inferted : for the former words import an 
oftenfe preceding or concomitant to the ad: of treafon, but 
the latter words receiver^nd. comforters are after the ofFenfe, 
and fo of another nature : and this difference appears ex- 
prefly by the ifatute of i 3 Eli^. cap. 2. where abetters, pro- 
curers, and coiinfellors are made guilty of high treafon ; but 
receivers and comforters (e) after the hd: are only within the 
ftatute of prdmimire; the like in 27 Eli^. cap. 2. where the 
comins; of a prieft, QJfc. is treafon, but his receiver, aider or com- 
forter is felony: fo >) tf 6 E.6. cap. i i. and i Eli^. cap. 5. the 
offenders, their coiinfellors, abetters and procurers, and all and 
every their aiders and comforters knon^ing the fame extend to 
knowing receivers. 

The word (aid) is of fomewhat a more doubtful extent, 
yet we iliall find in thofe ftatutes and fome others the word 
aid to be applied to an aiding after the oflenfe, and not in it 
or to it ; but it ieems to me, that when it is joined only 
with thofe that import a confent to the ofl^enfe, (as procurers, 
counfellors, aiders, abetters, or counfellors, confenters and aiders,) 
as in the ttatute of 5 Ell-z^. cap. 1 1 . for clipping, 1 8 £//:^. 
cap. I. for impairing, i Mar. fejf. 2. cap. 6. for counterfeiting 
iorein coin, it* muft be confirued of thole, that are aiders in 
the ofFenfe, and not bare receivers of the perfon. 

But in all new treafons, thofe that reicue him from pri- 
fon or fufter him voluntaeily to elcape being lawfully commit- 
ted to his cuftody, tho thefe are not exprelly containd in that 
new aft of treaipn, yet they are traitors by a neceflliry cor.- 
ilrudion of law upon the adl itfelf j but if the a£l be general, 
4. making 

{c) The words of this ftatute are, cormfclkrs, aiders, /rJ?J}mrs and corn- 
aiders, prccnrcn, and alcttns. /oners. 

(d) The words of this flarute are f^J The words in th's place of the fta- 

morc extcnfive, -viz. alettcrs, procurers, tute are, aiders, comforters or maintamcrs. 



Hijioria Placitorum Cor once. 237 

makinjT a man a traitor for fuch an a6l without mentioninf? 
in what degree his aiders, or abetters, comforters, or receivers 
fliall be, it feems probable, that the receiver, knowing it, is 
thereby virtually made alio a traitor ; this, I fay, feems 
probable, but moft certainly procurers, confenters, and aiders 
to the fa£l are thereby traitors, tho not fpecially fo enafled ; 
this is agreed in Conyers, cafe^ Dy. z'^6. G. P. C. 1 5 ^ 1 5 8. 

Secondly, As touching treafons within the a6l of 25 J5. ?. 

The procuring, counielling, confentingj or abetting fjcH 
treafons, tho not fpecially expreiTed in that ftatute, is 
treafon within that llatute. Co. P. C. Ciip. ^4. p. i ^ 8. and fo is 
the receiving of a traitor, or a gaoler's voluntary permittin"^ 
him to efcape, if he were in truth a trairor. 

Iw cale of the knowingly receiving of a perfon guilty of. 
counterfeiting of coin, or of the great feal, tliere is diverfity 
of opinion, Af. i 2 C^ i 3 Eli^. Dy. 296'. and my lord Coke 
himtelf in his 11 Rep. p/di. S)J'ac. fays, that it is not tre;:- 
fon, and yet ?la.Cor. cap. 64. p. 138. he holds it treafon, tho 
this latter opinion is the more probable, the former is more 
merciful. 

But in all other treafons againit the king within the fta- 
tute of 25 £. 5. the receiver of a traitor knowingly makes 
the receiver a traitor: this was Aldingtons cafe for receiving 
Garnet guilty of the powder treafon. Co. P. C. ^.138. 

Only this difference is to be obferved, he, that being com- 
mitted for treafon breaks prifon, may be indiifed for break- 
ing of prifon before he be convift of the principal oifenie, 
for which he was committed, but not of treafon, but it will 
be only felony by the ftatute de frangsmibus prifonam, for this 
ftatute de ji-angentibus prifon am makes it not treafon ; and if 
it did, yet the ftatute of 25 £. 3. makes it no treafon, 
becauie not within the fame ftatute, and confequently i Mar. 
Clip. I. exempts it from being treafon ; but he, that refcueth a 
perfon impriioned for treaion, or fuffers him voluntarily to 
eicape, Ihali not be arraigned for that offenfe, till the prin- 
cipal offender be convift of that offenfe ; for if he be acquit- 
ted of the principal offenfe, the gaoler that fufferd the efcape, 

P p p and 



2.38 Hifloria Placitorum Corona!. 



iind he that made the reicue iliall be difcharged ; and the like 
ill feloi"!}'. Coke ^Lig- Car. fuper fiat, de frangmtihiis prifonam 
p.") 91. and the realon is, becuule tho reicuing a perfon char- 
ged with treafon, or fuftering him wilfully to efcape be a 
great mifdemeanor, yet it is not trealon, unlefs in truth and 
reality he were a traitor, for a man may be arretted or im- 
prisoned under a charge of treaion, and yet be no traitor. 

And tho the receiver of a traitor, knowing it, be a 
principal l;raitor, and lliall not be laid an acceffary, yet thus 
much he partakes of an accefTary, i. That his indiftmenr: 
mud be Ipecial of the receipt, and not generally, that he did 
the thing, which may be otherwife in caie of one, that is a 
procurer, couniellor, orconlcnter; thus it was done in Con- 
jytr's caie, Dy. 296. 2. That if he be indifted by a fevcral 
indiftment, he lliall not be tried till the principal be convifl- 
ed (/J, upon the realon of the gaoler and refcuer before ^^i- 
ven, for the principal may be acquitted, and then he is dil">» 
charged of the crime of receipt of him. ^ . If he be indi^led 
fpecially of the receipt in the fame indi£lment with the prin- 
cipal offender, as he may be, yet the jury mull: liril: be char- 
ged to inquire of the principal offender ; and if they find him 
guilty, then to Inquire of the receipt, and if the principal be 
not guilty, then to acquit both ; and accordingly it was ruled 
in Ardens cafe, {g) 

For tho in law they be both principals in treafon, and pof- 
fibly proceis of utlary may go againil: him, that receives, at 
the iam.e time as ao;ainft him, that did the fa£l j and tho the 
principal appear, procefs may go on againll the other (other- 
wile in the caie of an acceffary in felony, Stamf. Pla. Cor. 47.) 
yet in truth he is thus far an acceffary, that he cannot be 
guilty, if the principal be innocent. 

How far Mortimer s cafe agrees with law at this day, vide- 
bimiis infraj isi' vide fupra. 

3 That 

(f) See fcjica Scok U. cap. 28. And treafon) was not at that time conviiftccl, 

therefore theconvidionof lady^/zcrZ^/?'^, nor indeed was there any proof, that /he 

I Jac. II. was contrary both to law and at that time knew he had been in the 

rcafon, for that Hicks the principal (for rebellion. State fr. Fol.lV. /. loj. 
harbouring whom fhe was -convifled of (s) i And. 11. 154. /. icp. 



Hifioria Placitorum Coron£. 239 

That, which w^ill not make an arceilary to felony alter the 
£i£l, will not make a man principal in treaion ; therefore 
lending of a letter for his deliverance, or fpeaking a good 
word for him, ^c. will not be treafon. Stamf. PL Cor. 41.^. 
how far charitable relief will do it, t^ide infra fuper ftmutum 
I 5 £//^. tap. I . 



CHAP. XXIII. 

Concerning forfeitures hy treafon. 

TAvih'j gone thro the feveral treafons declared by this lla- 

J- tute, 1 lliall no\v proceed to what follows in this Ihi- 
tute, which is, l. Touching forfeitures of high treafon. 
2. Touching declaring of treafon by parliament, and under 
this head ihall conlider thole feveral declarations and new en- 
acted treafons fince the fi:atute of 2 5 £. 3 . and how they ftand 
at this dav. 

The forfeitlires for treafon are either goods or lands. 

As to goods : the king's prerogative as to goods forfeit for 
treafon is the fame as to forfeitures for felony, only there feems 
to be fome difference in relation to grants thereof. 22 Aff.^q. 
The king grants to the mafter of St. LeoriarcCs Omnia bona ij 
catalla tenentium fuorum fiigitivorunjy iD' felonum qHalitercmqiie 
damnatorum. A tenant of the mafter's was conviil and at- 
taint for killing of the king's meffenger, which at that time 
was held high treafon ; it was ruled, that the mailer Ihall 
not have the goods of this perfon by force of this general 



grant. 



As to lands this ftatute of 25 £. 3. goes farther, Et Joit a 
entendiiSy qs les cafes fuifnofmes doit eflre ddjugge treafon, qe fe 
extend a nofire feigneur le roy i^ fa royal majefiy, i5f de tiel 
manners de treafons le forfeiture dcs efchetes appertenont a nofire 
feigneur le roy, ci Men de terres ^ tenements tenits des autresy 
come de hit mefme. I jliall 



240 Hifloria Placitonim Corona. 



I ilia] I here examine, i . Of what lands the king {hall have 
the eichete upon attainder of trealon, and 2. In what man- 
ner or degree he fnall have thofe efchetes. y Where a fiib- 
je(ft in point of privilege or franchife lliall have thefe royal 
eiclietes. 

I. As to the firft of thefe, what lands are forfeit to the 
king by attainder of treafon, my lord Coke, 'Pi Cor. p. 1 9. 
gives a full account of them, which I Ihali repeat with fome 
additional obfervations : i . At Common law the lands entaild 
were forfeited for treafon, becauie it A\'as a fee-limple condi- 
tional ; but by the ftatute W. 2. de donis conditionalibus the 
forfeiture of lands entaild, even in caie of trealon, was taken 
away, and the general words of this ftatute of 2 5 E. ^. doth 
not repeal the ftatute oi' IVefim. 2. 

But fome later ftatutes have given to the king the forfeiture 
for treafon of lands entaild : the ftatute of 21 R. 2. cap. 5. 
did "ive the forfeiture of lands entaild to the Yim for the 
treafons therein mentiond ; but that ftatute with the v^hole 
parliament of 21 i?. 2. was repeald by the ftatute of i H. 4. 
cap. 3. 

By the ftatute of 26 E. 8. cap. i 3. in fine lands entaild are 
forfeited by attainder of treafon, vi^. " All fuch lands, tene- 
'"' ments and hereditaments, v.'hich anv fuch oft'ender lliall 
" have of any eftate of inheritance in ufe or pofleftion, by 
" any right, title or means, within any of the king's domi- 
nions at the time of any inch treafon committed, or at any- 
time after, faving to all perions, other than the ofienders, 
their heirs and iucceffors, and inch perions as claim to any 
" cf their uies, all fuch right, title, intereft, pofleftion, i^fc, 
*' as they might have had if this a6l had not been made. 

-And by the ftatute of 3 3 H 8. cap. 2 c. (a), " That if any 
" perfon be attaint of high trealon L)y the courfe of the 
" com.mon law fuch attainder ihall be of as good force, as if 
" it had been by parliament ; and the king, his heirs and 
" iucceffors lliall have as much benefit by fuch attainder, as 
*' well of uies, rights, entries, conditions, as pcflefivons, re- 
*' veriions, remainders and all other things, and Ihall be 
3 . " deemed 

[a] See the caufe of making this a61, 5 Co. Re^. 1 0. h. 



Hijloria Placitoriim Corona. 241 

" deemed in the aflual and real pofTeffion of the lands, tene- 
" ments, hereditaments, lUes, goods, chatties, and all other 
" things of the offender, which ]:iis highnefs ought to have, 
" if the attainder had been by authority of parliament, with- 
" out any office or inquilition to be found for the fame, fa- 
" ving to all perfons, (other than the oftenders and their 
" heirs and afligns, and other perfons claiming by, from or un- 
" der them or to their ufes after the treafon committed) all 
" fuch right, title, life, pofTeffion, entry, reveriion, remainder, 
" intereif, condition, fees, offices, rents, annuities, commons, 
" le:iies, and all other commodities, and hereditaments what- 
" foever, which they lliould, might, or ought to have, if 
*"' this a£l: had not been made. 

And the ftatute of $ iff 6 Ed. 6. cap. 1 1 . is to the fame 
effea. 

I'hefe flatutes as to the forfeiture of lands entaild remain 
in force, and are not repeald by the flatute of i Mar. and fo 
it hath been often ruled, and particularly by all the judges ia 
the lord Sheffjclifs cale 2 i jfac. de quo pojiea. 

And the reafon is, becauie tlie ilatute of i Mar. cap. i . en- 
ailing, that no treaion Ihall be but what was enabled by 
25 £. 5. and that no pains of death, penalties or forfeitures 
fhall eniue for doing any treafon, other than be in the ftatute 
of 2 5 £. 3 . theie words other than be mcntiond in the flatutc 
of 2$ E. 3. refer to treafons, not tq forfeitures or penalties; 
and therefore tho by the ftatutes of 26 and 33 H. 8. new pe- 
nalties, vi^. forfeitures of lands intaiki, are introduced, this 
forfeiture is not repeald, but only new treafons not mentiond 
in 2 ^ E. 3. fo that at this day, if tenant in tail be attaint of 
treafon, the eftate-tail is forfeited, and yet this attainder works 
no corruption of blood as in relation to the heir in tail : 
vide the lord Limley^ cafe cited in Dorptie's cafe, 3 Co. Rep. i o./'. 
Grandfather, tenant in tail, father, and fon, the father is at- 
taint of treafon ;ind dies, the grandfather dies, the land fliall 
defcend to the grandchild, for the father could forfeit no- 
thing, for he had nothing to forfeit ; and the ftatute of 26 
H. 8. that, gives the forfeiture of tenant in tail, yet corrupts 
not the blood by the attainder of the father. 

Q.qq And 



242. Hijioria Placitorum Corona. 



And therefore ic is agreed In the principal cafe, that if af- 
ter 26 H. H. and before 3 3 H 8. which veils all in the king 
without office, if tenant in tail had been attainted of tfea- 
fon, and died in that interval, the land would have defcended 
to his fon till office found ; but otherwife in cafe of tenant 
in fee-fimple attainted and dying before office, the freehold is 
caft upon the king without office, becaufe none could take it 
elfe. 

2. The king at common law and by virtue of this ftatute 
was entitled to a right of entry, where the party was in 
merely by diiTeilin or abatement, but not to a right of entry, 
where the poiTeflor was in by title ; but at this day by virtue 
of the ftatute of 3 3 H. 8. above-mentiond the king is entitled 
to a right of entry in both cafes, and that without office, 
but then there muft be an inquiiition or feizure to bring the 
king into the afiual pofleffion ; and if he grant it over be- 
fore fuch feizure, the grant muft be fpecial, not of the land 
limply, but of the right to the land, otherwife neither land 
nor the right of entry paffeth ; it is fo adjudged in Dorvtys, 
cafe, 3 Co. Rep. 1 o. b. 

3. If a perfon commiitting treafon hath at the time of 
the treafon committed a bare right of aftion touching any 
lands, or a right to reverfe a judgment given againft him by 
writ of error, or a right to bring a formedon, or writ of 
entry, but hath no right of entry without futh itiovery in 
fuch aftion ; this right neither at coram^on law nor by the 
ftatute of 3 3 H. 8. is given to the king by the attaliuier of 
treafon, 3 Co. Rep. 3 . a. marquis of Wimhefiers cafe, 3 Co. Rep. 
10. h. Dowtys cafe fo adjudged ; but yet there have been 
two great cafes refolved, that tread hard upon the heek of 
this judgment. 

H. I 5 Eli^. PI. Com. $$1. b. Walfinghams cafe : Wyat tenant 
in tail of the gift of king Henry VII. the reverfion in the 
crown, made a feoffinent in fee, and then was attaint of trea- 
fon, and died leaving iffiie, tho the feoffor againft his own 
feoftment could not claim any right at the time of the trea- 
fon ; yet it was adjudged, i. That there remaind in him fuch 
a right of the entail, as was forfeited to the king. 2. And 
4 that 



Mi ft or i a Placitorum Corona, 245 

that the kins: Was In as of his reveriion, and fiiould not be 
fubjefl: to leaies duly made by Wyat before his attainder. 

2 I Jac. in Camera Scaccarii Stone and Newmans cafe, it was 
adjudged in B. R. and affirmed in Camera Scaccarii by the 
greater number of juftices. Bi^ott tenant in tail general makes 
a feoffinent to the uie of himielf and his heirs ; and before 
the Itatute of 26 or 27 H. 8. commits treafon, and is attaint 
of treafon, and dies leaving illue inheritable to the entail, 
then a fpecial ftatute is made 3 i H. 8. whereby he was to for- 
feit all ellates and rights ; yet it was adjudged, i . That againft 
his own feoffinent the tenant in tail could have no right, and 
therefore if the cafe had flood barely fo, the right of the en- 
tail could not have been forfeited by the attainder. 2. But 
when an eflate returns to him, that is forfeited by the attain- 
der, the king ihall hold this eftate difcharged of the right of 
the old entail, and that right fhall never revive to the iffue. 
3. That the retrofpeft of the king's title by the attainder 
Ihall over-reach and avoid the remitter, which. was wrought 
in the ilTue before the king's aftual feifin by the attainder or 
office thereupon. 

But- it is to be noted, that if the king makes a gift in tail, 
faving the reverfion to himfelf, the attainder of treafon of 
fuch tenant in tail ffiall not bar his iffi.ie, becaule the ftatute 
of 54 H 8. cap. 20. ena61:s, " That the heir in tail in fuch 
" cale ffiall have the lands, any recovery, or any other thing 
" or things hereafter to be had, done or fufferd by or a- 
" gainft fuch tenant in tail to the contrary notwithftanding"; 
which aft coming after i6 H. 8. and 33 H.%. that gave the 
forfeiture of lands entaild, is a repeal of thofe ftatutes as to 
this cafe, and a reftitution of the ftatute de donis conditionali- 
bus in this fpecial cafe : and therefore, where in Plorvdens 
Commentaries {Walfinghamh caie) Wyat, w'ho was tenant in tail 
of the gift of the crown, the reveriion in the crown, was at- 
taint of treafon i Mar. he had not forfeited his land by vir- 
tue of the ftatutes of 2 5 or 3 3 //. 8. if there had been no 
more in the cafe ; but in that cafe he loft it, becaufe by a 
ipecial acl of i ilf i Ph. ^ Mar. that attainder was confirmed, 
and farther it was enabled, " That he Ihould forfeit all the 

. " lands 



244 Hijloria Placitorum Corona.-. 

" lands, tenements and hereditaments, whereof he or any to 
" his lite Vv^as feized the day of the treaion committed, ili- 
" ving the right of all perfons other than the perfon at- 
" tainted and his heirs, and all claiming under them after 
" the treafon committed ; " and this a£l: coming after 3 4 
H. 8. cap. 20. repeald that a61: as to this cafe, as the a6l c^f 
54 H, 8. repeald the afts of 26 and 3 3 H 8. as to entails of 
the gift of the crown, where the revcrlion continues in the 
crown. 

But fince all thefe ftatutes it is ena61:ed by the ftatute of 
$ ^ 6 Ed. 6. cap. 11." That every offender being lawfully 
" convlft of aiiy manner of high treafon according to the 
" courfe and cuftom of the common law fliall lofe and for- 
" feit to the king's highnefs, his heirs and fucceffors, all 
" fuch lands, tenements and hereditaments, which any fuch 
" offender or offenders Ihall have of any elfate of inheritance 
" in his ow^n right, in ufe, or polTeffion, within this realm 
" of England^ or eliewhere within the king's dominions at 
" the time of fuch treafon committed, or at any time after" 
this acl coming after 34 //. 8. makes lands of the gift of the 
king in tail iubjeft to forfeiture for treafons, as well as other 
itlfids entail. 1 6 El/^. Dy. 332.^. 

4. At common law the king was not entitled to a condi- 
tion, that was in the party attainted ; but now by the ex- 
prefs words of the ftatute of 3 3 H. 8. the king is in fome 
cafes entitled to a condition of re-entry belonging to the party 
attainted, t;/^. not to the land itfelf but to the benefit of that 
condition, which might reduce the land into the poiTeflion of 
the party attainted, if he had not been attainted, and now 
to the benefit of the king ; but herein this difference is to be 
obl^rved. 

I. If the condition be fuch, as that the fubftance of the 
performance thereof is not bound up ftri£Hy to the perfon at- 
taint, then fuch a condition is given to the crown, and he 
may perform it, as the party himfelf might have done in 
cafe the condition hath a continuance. 

• 7 Co. Rep. II. b. Englefeild's cafe : Sir Francis Englefeild con- 
veyed his lands to the ufe of himfelf for life, the remainder 
4 to 



u 

(C 



Hifioria Placitorum Coroude, 24^ 

to his ^ephe^y and the heirs male of his body, ^c. with a 
provifo, that in as much as he might turn prodigal, and there- 
fore for a bridle to him, if Sir Francis by himlelf, or any 
other during his life, lliould deliver or offer to his nephew a 
ring of gold to the Intent to make void the ufes, then the 
ufes lliould ceafe : Sir Francis is attaint of treafon ; it was 
ruled, that the queen in the life-time of Sir Francis may by 
commillion, ^c. tender the ring and make void the ufes, for 
it was not perfonally annexed to him, but might be perform- 
ed by the queen. 

This cafe was judged M. 3 3 ^^ 3 4 £%. but it was not 
thought lafe to rely upon this judgment; but 35 Elii^. cap. 5. 
there was a Ipecial a£l: of parliament reciting the attainder 
and the conveyance with the provifo: " And it is declared 
and enafted, that the attainder be confirmed, and that the 
queen was lawfully entitled to take benefit and advantage 
of that provifo in the fame form, as Sir Francis Engkfeild 
might have done, and that the faid provifo or condition 
" was well performed by the queen's commillion:" But fup- 
pofe Sir Francis had died before the queen had made the ten- 
der, then the condition, which was only limited to him du- 
ring his life had been determined, and the queen could not 
have tenderdj for the attainder could not lengthen the con- 
dition longer than the firft limitation ; but on the other fide, 
if the condition be appropriated and applied to the perfon of 
the party attaint, then luch condition is not given to the 
crown. 

The duke of NorfolKs cafe 1 1 E//;^. (b) cited in EnglefeilcCs 
cafe to be adjudged and then agreed by the court : the duke 
conveyed land to ufes, provided that it he lliall be minded to 
revoke, and ihall fignify his mind in writing under his proper 
hand and feal fubfcribed by three witnefles, that then the 
ufes lliould be revoked ; it was ruled, that this condition was 
not given to the cro,ivn by his attainder. 

xCar. I. B. R. Sir IViUiam Shelly (c) made a feoffment to 
the ufe of himlelf for life, the remainder to his firft, fecond, 

R r r third, 

il>) • Co. 13. /?. •■ ;;fr and Hardtvin in Latch 25, dp, lOi. 

(jj Sec this cale by the name oifFar- W. Jcucs 134. 



246 Hifloria Placitorum Coroude. 

third, and other fons in tail, provided, that if Sir IVilliam 
Shelly at any time during his h"fe give or deliver, or lawfully 
. tender to the feoffees or any of them, their heirs or afhgns, 
a gold ring, or a pair of gloves of the price of twelve-pence, 
7pfo Willlelmo tunc declarante ^ exprcffante, that the tender was 
to the intent to avoid the deed, that then it ihould be void, 
and the feoffees ftiould fland feifed to the ufe of Sir Vy'iUiam 
and his heirs ; and it was adjudged in the common pleap, 
that this condition was fo perfonal, " that it was not given to 
the king, but upon a writ of error in B. R. the court was 
divided j IVhitlock and Jones, that it was given, Croke and Dod- 
der'idg^, that it was not given to the king, <y fu ftetit. 

In the cafe of Wheeler and Smith (d\ Simon Mayne being 
poflelled of the re6lory of Haddenham for fixty years, in 
164^. alligned it over to truftees in truif for himfelf for 
life, and afterwards to divers other trufts for payment of 
debts and other things, provided nevefthelefs and upon con- 
dition, that if the faid Simon Mayne ihali at the time of his 
deceafe have iifue of his body, that then and from thence- 
forth the truil:ecs ihall itand pofTelTed for fuch perion and 
perfons, and Inch eftate and eftates, as Simon Mayne by his 
lafl will and teftament ihall limit and appoint, and for want 
of fuch limitation and appointment, in tiuft for inch' after- 
born child ; provided alto, that if the faid Simcn Mayne fhall 
hereafter during his life be minded to make void theie pre- 
fent indentures, or any ufe or truft therein, or to limit new 
iifes, and the fame his mind ihall declare or fignify under his 
hand and feal in the prefence of two witneffes, then the 
ufes lliall ceafe, and then the truilees fhall Ifand polfeircd to 
fuch ufes, as he by fuch deed or writing, or by liis lall: will 
and teftament in v/ritiiig ihall limit and appoint. Simon Mayne 
was gnllty of the execrable murder of the king, had ilfue a 
fon, was attainted, and died without making any luch will or 
revocation or declaration, and by a£l: of parliament all the 
eflates, which he had or any in truff: for him, and all rights, 
conditions, i^c. were vefted in the crown, who granted this 
Teflory to the duke of Tork, and by him the fame was granted 
.4 »• to 

(d) Sec this cafe reported a Kch. j6^, 6cS, 64.^, yfi";, 772. i Mc^. 16, 38, 



Hiftoria Placitorum Corouce. 247 



eri-i^ 



to Sir William Smyth : it was adjudged in tiie common pL 
and upon a writ of error affirmed in the king's bench, P. i ^ 
Car. 2. that Sir William Smyth had no title to this reflory : 
I . That this was a perfonal condition and not given to the 
kin^, tinder his hand and under his proper hand, being all 
one in lenie and appropriate to his perfon. 2. That, if it 
were given, yet the fame expiring by the death of Mayne 
could not be performed after his death by the king. 3. Ad- 
mitting it might, yet nothing but the condition was in the 
king, and not the re6lory itlelf, till the condition performed, 
4. That confequently the re6lory paiTed not to the duke of 
Tork, becaufe the condition was not performed, y. Neither 
the performance of the condition nor the benefit thereof 
paffed to the duke by the general grant of the reftory, but 
it muft have been fpecially granted, or otherwife nothing 
paffed. 6. That here was no eftate in trufl for Simon Mayne 
longer than during his life, becaufe the whole relidue of the 
trull Was out of him, and was not reducible back to him, 
but by a ftri6l performance of the condition or pov\'er, which 
was ftridly tied to the perfon oi Simon Mayne, and determined 
by his death, and therefore not given to the crown; but if 
it had been given to the crown, and might by the crown be 
transferred to the patentee, yet it feems the patentee could 
not transfer or affign that condition over to another ; but this 
laft queftion was not moved, as I remember, for the refolu- 
tion of the former points made an end of the cafe. 

5. At common law the king by attainder of treafon was 
not entitled to iifes or trufts belonging to the party attaint : 
thus it is recited to be the law by the fiatute of 27 H 8. cap, 
1 o. and w^as one of the reafons of the making of that ftatute 
for transferring of ufes into pofieffion ; and hence it was, that 
in fome general a6ls touching treafon, as that of 21 R. 2. 
cap. 5. and in moll: particular a£l:s of attainder, that were 
made after that time, there was fpecial provificn made, that 
the parties attaint fhould forfeit all the lands, whereof they 
or any other to their uic were feized, and in moll: of thole 
a& provilicn Vv'as alfo made to fave from forfeiture fuch 
lands, whereof the perfons attaint were feized to the ufe cf 

any 



Z48 Hijloria Placitonim Corona, 

any other, as may be feen in the a£ls of attainder : vide 
Rot. Pari I E. 4. n.i 8. 3 E. 4. n. 28, (^c. 

And yet, altho the ftatute of 27 H 8. c^/). 10. had exe- 
cuted iifes into pofTeffion, fo that after that llatute all ufss 
were drowned in the land, yet there have fucceeded certain 
equitable intereife called trufts, which difter not in fubftance 
from ufes ; nay, by the very ftatute of 27 H. 8. cap. ic. they 
come under the fame name, -vi^. ufes or trufis. 

And by the ftatute of 33 H. 8. cap. 20. there is a fpecial 
claufe, that the perfon attainted Ihall forfeit all ufes, ^c. 
and the faving is to all perfons other than the perfon attaint-* 
ted, and his l^teirs, and all perfons claiming to the ufe of 
them or any of them. 

And what other ufes there could be at the making of 
the ftatute of 33 H. 8. but only trufts, fuch as are now in 
praclice and retained in chancery, I know not, and yet ftich 
hath been the opinion of men, or rather their neceffity in re- 
fpe£l of frequent emergencies in eftates and their difpofitions 
thereof, that thefe trulls fince the ftatute have not only been 
Itept from being executed by the ftatute of 27 H.2. but have 
been held and ufed quite as other things different from ufes, 
and from all thofe burdens, with which ufes were incumbred 
by feveral acls of parliament made before 27 H. 8. 

And therefore H. 3 5 Eli^. Croke, n. 2. B.R. Ridler and Pun" 
ter (e), luch a truft not within the ftatute of 3 H. 7. cap. 4. 
or any other ftatute of that nature. 

M. 1 6 Jac. B. R. Croke, w. 2 3. (/) the king made a leafe for 
years to Sir Jofm Dimcombe of the provifton of wines for the 
king, but in truft for the earl of Somerfet, who Vv^as after- 
wards attainted of felony ; by the opinion of all the judges 
the king lliall have this truft, and fo if a perfon outlawed 
have a bond made to another in truft for him, it ftiall be 
executed by an information in the exchequer-chamber or 
chancery ; but it was agreed by them all, and fo refolv^ed in 
Ahingtons cafe, that a truft, if a freehold, was not forfeited 
by attainder of treafon. 

4 But 

(.e) Cro. Eliz. 291. (f) Cro. ^ac. ^n. ffol>.iT^, 



Hijloria Placitorum Corouije, 249 

But how this refolittion in Abingions cafe can ftand with 
the ftatute of 3 3 H. 8. I fee riot, lor certainly the iifes there 
mentiond could then be no other than triiils, and therefore 
the equity or the truft itfelf in cafes of attainder of treafon 
feems forfeited by the ftatute of 33 //. 8. upon an attainder of 
cefly qe truft of an inheritance, tho poilibly the land itfelf' 
be not in the king. 

But indeed, where the king or a common pcrfon Is enti- 
tled to an efchete by an attainder of felony, there by the at- 
tainder of cefty qe truft in fee-fimplc the land nor truft doth 
not come to the king or lord by efchete, for the efchete is 
only ob -defeSium tenentis, and in this cale the king or lord 
hath his tenant, as before, namely the feoffee in truft, who 
is to be attendant for the fervices to the king or lord, and 
by the attainder of felony of the feoffee, the lord fhall have 
his efchete of the lands difcharged of the truft ; and befides, 
an attainder of felony is not within the ftatute of 33 R ^. 
dip. 20. and fo it was reiolved by all the court in the exche- 
quer, M. 21 Car. 2. wherein the cafe was thus. (/;) 

I o Martit i Car. i . a long leafe of the manor of Bony Tracy 
came to Sir Ralph Freeman. 

4 Car. I . The fee-ftmple thereof was conveyed to Sir George 
Sands and his heirs in tndf for Sir Ralph Freeman. 

July 1^33. Sir George having ifiue two fons, Freeman 
Sands and George Sands j Sir Ralph Freeman devifed part of the 
manor to Freeman Sands and his heirs, and other part thereof 
to George the fon and his heirs, and devifed all the reft of 
the manor to Freeman Sands and George his brother, and all 
fuch other fons as Sir G^or^^ fliould have by Jane his wife, 
and their heirs, and made Sir George Sands and Ralph Freeman 
executors, and appointed them to convey the term according 
to thefe trufts. 

Rjilph Freeman the executor refufed, Sir George took admi- 
niftration alone to him and his wife cum teftamento annexo. 

163 5. Freeman Sands died without iffue, George being his 
brother and heir. 

S f f After: 



2^o Hifloria Placitorum Corona. 

Afterv/ards Sir George by Jane Ills wife had ilTue another 
Freeman Sands, but no conveyance was executed of the term 
or inheritance. 

1655. Freeman Sands murdered his brother George, who 
dying without iffue all that right or trufi:, that was in George 
the brother, defcended and furvived to Freeman. 

7 Aug. 1^55. Freeman the fon was attainted of felony. 

23 Nov. I<55 5. Sir George takes adminiftration to his fon 
George. 

The land being held of the king, as of the manor of Eajl' 
Greemvich, the king's attorney preferred an information againil 
Sir George Sands in the exchequer-chamber to have a convey- 
ance both of the term and inheritance to be executed by Sir 
George Sands unto the king, being the lord of whom the land 
was held ; but it was ima voce relolved, i . That as to the in- 
heritance, tho there were a triift for George the fon, and that 
truft defcended unto Freeman the murderer, as his brother 
and heir, and was in him at the time of the death of his 
brother and at his attainder, as to the greateft part of the 
lands, and as to the reiidue of the lands the truft was origi- 
nally for Freeman Sands, yet in as much as Sir George Sands 
continued feized of the fee-hmple, and fo was tenant to the 
king, tho fubjetl to a truft ; yet the truft efcheted not to 
the crown, but Sir George held it difcharged of the truft. 
2. That the term for years was not extinguiftied in law by 
the acceftion thereof to Sir George, as executor or admini- 
ftrator, tho Sir George had the fee-limple, becaufe it was en 
autre droit, that he had the term. 3 . That if the term for 
years had been a term in grofs in truft for the party attaint, 
then by the attainder of felony the king had been entitled 
thereunto, not in point of eichete, but by his prerogatiA^e, ha- 
ving bona iy cat alia felonum. 4. But this term being to at- 
tend the inheritance the truft thereof was not like the truft 
of a chattle in grois, but was to wait upon the inheritance 
(and otherwife it had been impoftible for the greateft part to 
have delcended from George Sands to his brother Freeman 
Sands, unlefs it waited upon the truft of the inheritance) 
therefore the inheritance remaining in Sir George now dif- 
3 ^ charged 



Hiftoria Placitorum Corona. 25" l 

charged of the triift by the attainder of Freeman Sands the 
triift of the term jOhall alfo remain in him, for it is a kind 
of incident or appurtenant to the inheritance. 

And in this cafe the cafe of Sir Walter Raleigh was cited, 
which was Mich. 7 Jac. in Camera Scdccarii. Sir Walter Raleigh 
being poffefTed of a long term lor years of the manor of Sher- 
burn, intending to obtain the inheritance affigned this term 
to his fon an infant upon pretenfe for a triifij for his fon, but 
reaJIy in truft for himielf. 

Sir Walter Raleigh then purchafed the inheritance and made 
a fettlement upon his fon, but the fame was defeflive, whereby 
the fee-iimple remained in Sir Walter. 

I Jac. Sir Walter was attainted of treafon, and afterwards 
the king granted all the goods and. chatties real and perfonal 
of Sir Walter to Sbelbmy and Smith in truft for Sir Walters 
wife and children. 

Sir Walter Raleigh was executed, and upon an information 
in the exchequer, M. 7 Jac. it is declared and decreed, that 
the leafe was in truft for Sir Walter, and therefore forfeited 
by his attainder, as well as if it had continued in him, and 
that it Ihould be cancelled, and not incumber the reverfion 
in fee-fimple. 

So that according to this refolution this truft for Sir Walter 
was not a chattel, for then it had palled to Shelbury and 
Smith ; but it was a kind of appurtenant to the inheritance, 
and together with it was forfeited by the attainder, the con- 
veyance of the inheritance being defe6live, and accordingly at 
this day it is held by thofe, that derived under the patent of 
king James. 

6. At common law the king by attainder of treafon was 
not entitled to any chatties, that the party had en autre droit, 
as executor, or adminiftrator, or in right of a corporation 
aggregate. 

But the huiband polTefled of a term in right of his wife 
forfeits it by attainder of treafon, felony, or outlawry ; but 
as to lands of inheritance, if the hufoand be feized in right of 
his wife, and is attainted of treafon, the king hath the free- 
hold during the coverture ; and fo if tenant for life be at- 
tainted 



1^1 Hijloria Placitorum Corona, 

tainted of treafon, the king hath the freehold during the life 
of tb.e party attainted ; and fo he had before the ftatute of 
26 H.?i. by the attainder of tenant in tail. 

Touching forfeitures for treafon by a corporation fole, or 
aggregate, lomewhat is obfervable. 

At common law and ftill to this day in the cafe of a cor- 
poration aggregate, as dean and chapter, mayor and com» 
monalty, where the pofTeffions are in common in the aggre- 
gate corporation, nothing was or is forfeited by the attainder 
of the head of the corporation, as the dean, mayor, ^c. 

At common law a fole corporation, as an abbot, biihop,^ 
dean, prebendary, parfon, vicar by attainder of treaion for- 
feited to the king the profits of their abbey, bilhoprick, pre- 
bend during their incumbency ; but their lucceilbrs were non 
bound by that forfeiture, for tho the profits, as they arofe 
belonged to their perfons, yet the inheritance was in right cf 
their church, and fo not forfeited. 

But by the general words of the ftatutes of 26 and 3 3 H.2. 
and by the exclufive faving of the rights of others, other 
than the juccejfors of the perfons attaint, thefe fole corpora- 
tions forfeited the inheritance, and their fucceffors were bound 
by fuch attainder ; for it is apparent that H. 8. had not only 
in profpe61: the diflblution of monaiferies, but had a refolu- 
tion to curb the clergy, who were too obfequious to the pope 
and his power. 

And therefore there were feveral attainders of abbots of 
high treafon, whereupon the king feized their poffeflions, as 
dlllolved thereby, as appears by the ftatutes of 27 H. 8. cap. 
i?i, and 3 I H. 8. cap. i 3. touching monafteries, tho the king 
refted not barely upon fuch attainders ; but by the ilatutes ot 
27 and 31 H. 8. their polTefflons are fettled in the crown by 
thofe a£ls, and with this iigrees the book o£ Dy^ 289. 

And therefore we may obferve in the ftatute of i Mar. 
Jejf. 2. cap. 16. for the attainder of the archbilhop oi Canter- 
bury a cautious provifo was added, that it IhouLi not preju- 
dice his fucceffors touching the pofleilions of his fee ; this 
was to avoid the queftion, that otherwife might have arifen 
upon the general words of the forfeitures thereby enabled. 

5 But 



Hi (lor I a Placitoriim Cor once. 295 

But now by the aft of 5 <^ (5 Ed. 6. cap. i i. this matter 
feems to be iettled, for Vv'hereas by the ftattite of 26 H. 8* 
cab. I 2. a peri on attaint of treafon is to forfeit all the lands^ 
which he had by any right, title or means, faring the right 
of others, other than the heirs and fiicceflbrs of the perfon 
attaint, which conjfifcated the inheritance of fole corporations 
attaint of treafon, the ftatute of 5 <^ 6 E. 6. cap. 11. en- 
acls fpecially, that perfons attaint of treafon Ihall forfeit ths 
lands, which they have of any il:ate of inheritance in their 
own right, and laves the right of all perfons, other than the 
perlons attaint and their heirs, which reftores and preferves 
the right of fiiccejjors, as it was at common law. 

7. By the common law all hereditaments, whethei* lying 
in tenure or not, as rents, advowions, commons, corodies 
certain, are forfeited to the king by attainder of treafon ; 
but fuch inheritances, as lie purely in privity, appropriate to 
the perion, are not forfeited neither at common law, nor by 
any ipecial llatute, as a founderlhip, or corody uncertain. 

8. At the common law by attainder of felony or treaforl 
of the hufband the wife loft her dower ; by the ftatute of 
I E. 6. cap. 12. no attainder of treafon or felony excludes 
her dower ; but by the ftatute of 5 <^ 6 £. 5. f . i i . the huf- 
band attaint of treafon the wife Ihall lofe her dower ; and fo 
it ftands at this day, except in treafons enabled by particular 
ftatutes, where dower is faved to the wife, Hotwithftanding 
the attainder of her hulband of treafon, as upon the ftatute 
of 5; Eli^. cap. II. for clipping money, 1 8 Eli^. cap. 1 . for im- 
pairing money, 5 Eli^. cap. 1 . refilling the oath of fupremacy 
the fecond time, and fome others. 

And thus far concerning the things forfeited by attainder 
of treafon, now. 

II. I lliall confider in what kind or degree the king hath 
thefe forfeitures of lands. 

I. Akho theie be called royal efchetes, yet the king is not 
in purely as by an efchete, for he hath thofe forfeitures in jure 
corona of whomfoever the lands be immediately held ; yea, 
tho they are held immediately of the king, he hath them 
not in point of efchete, but jure corona or prerogative regalis. 

T 1 1 47 £• 3»' 



2.94 Hijtoria Placitorum Corona. 



47 jG. 3. 2 1. />. A manor is held of the king as of his ho-* 
hor of D. and the manor efchetes for the felony of the te- 
nant, it is now parcel of the honor, and therefore by the 
book if the king grant it out again generally, it {hall be'^held 
of the honor, but if it efchete for treafon, it is no parcel 
of the honor, and if it be granted out generally it iliall be 
held in capite, 6 jB. 3. 32.4. accordant adjudge : vide the cafe of 
Saffron IValden, Mores Rep. n. 301. (/) ^ ibidem ». 405. the 
caie of the borough of Southwark. (k) 

2. Where land comes to the crown by attainder of trea- 
fon all mefne tenures of common perlons are extin6l ; but if 
the king grant it out, he is de jure to revive the former te- 
nure, for which a petition of right lies. 46 E. 3. 19. (/) 

3. If tenant in tail of the gift of the king, the reverfion 
in the king, make a laafe for years, and then is attainted of 
treafon, the king fhall avoid that leafe, for the king is in of 
his reverfion, tho the tenant in tail have ifllie living : this 
hard cafe is fo adjudged in Commentaries Aufiins cafe (m) in 
fine, and yet if fuch tenant in tail had after fuch leafe bar- 
gained and fold, or levied a fine to the king, he fhould be 
bound by fuch leafe as long as there is iffue. H. zz Jac. B. R. 
Croker and Keljy (»), i Rep. Alton Woods cafe. (0) 

III. The third thing I propounded was the confideration of 
the efchetes in cafe of treaion to fuch as have royal fran- 
chifes, or counties palatine, as Durham, ^c, 

I. At common law divers lords had by fpecial grant or in 
right of their counties palatine royal eichetes of the lands 
held within their franchifes of perfons attaint of treafon a- 
gainft the king. 

Such was the royal franchife of the manor of Wreck in 
"John Darcys cafe, 6 E. 3 . 31.^. 

It appears in the parliament-roll $E.z. m.2. that the bi- 

Ihop of Durham claimed among divers franchifes between the 

waters of Tyne and Tefe, and Norham/Jjire and Bedlingtonfljire 

in the county oi Northumberland, the forfeitures of war, namely 

4 the 

• (/) Mo. 159. (m) ^lozv/i. 5tfo. a. 

(it) Mo. 257, (?;) Cro. Jac. 688. j B.. A. 843. 

(/) 1 take it this (Iiouldbe TJ. 0,6 E.%, (&) i Co. 40. h. 
IP er it ion ij. 



-,.-_- ..-■-^ — - — "--^ — ^ f>^.- >- ,,,n 



Hijloria Placitorum Cor once. Z^^ 

the lands of thofc) who held lands within that precinft, who 
adhered to the enemies of the king. 

And after many debates in parliament 2 £. :^. that liberty 
was allowed him by the judgment of the king and his council 
in parliament. 

Clauf. I E. 3. part i. nt. 10. and p. 2. m. 20, the precedents 
of the allowance of that liberty being produced, 7;/^. that 
Anthony bilhop of Durham had the forfeiture of Caflmm Ber^ 
nardi by the forfeiture of John de BnlioU the manors of Bert 
and Hertnffs by the forfeiture of Robert Bruce, the manor of 
Gretham, that was Peter of Montfort\ ; and, upon the conlide- 
ration of the feveral pleadings in thofe cafes, concorddtum efl 
per nos ilf totum concilium nofirum in ultimo parliamento, quod 
epifcopus haheat fuam libertdtem de hujufmodi forisfaBuris juxtd 
tenorem ^ effeSlum cart^ proavi nofiri, ideo vobis mandamus, 
(^7l^. the cuflos of theie lands) quod de terris isf tenementis in^ 
fra lihertatem epifcopatus pr^diBi, i5f in pr^diftis locis de Nor- 
hamfhire ^ Bedlingtonflhire in manu noflra isf in cuflodia no- 
flra per forisfaBurayn guerre exifientibus manum nofiram amo- 
■ventes vos ulterius de eijdem non intromittatis, and the like par- 
ticularly after Clauf. i £". 3. part 1. m. 20. an amoveas manni 
for all the lands of Guido de Bello Camp» Comes Warwick, qui 
de rege tenuit in capite infra libertatem epifcopatus Dunelmenlis, 
and likewile for the manors of Gaimford, Hert and Hertnefs 
in the hands of Roger de Clifford ieiied for the forfeiture of 
war of John de Baliol and Robert Bruce ', only tlie patentees 
not to be put out without an anfwer. 

So that it is apparent, that at common law the bifhop of 
Durham had the royal forfeitures of war (which was treafon) 
for fuch lands as were within his liberty, tho they were for* 
merly held of the king immediately in capite, if they lay 
within the precin£l of his county palatine ; and tho by the 
ffatute of 7 E. 6. the faid biflioprick was dilTolved, yet by the 
llatute of I Mar. pari. 2. cap. 3. that aft is repeald and the 
billioprick with its franchiies revived. 

2. Yet farther, tho this aft of 25 £. 3. declares, that all 
fuch forfeitures belong to the king, yet this aft did not dero- 
gate from the firanchife of the bilhop of Durham or others, 

that 



Z!^6 Hijtoria Placitorum Cor6n<3^, 

that had that royal liberty of forfeitures for treafon, becaufe 
it was in effeft but a declaration of the common law, or at 
leaft an afcertaining of it without prejudice to thofe, that 
had thefe franchifes of royal forfeitures, either by charter, or 
by reafon of their county palatine by prefcription ; and this is 
agreed by all the judges in the cafe of the billiop of Durham^ 
P. 12 EU\. Dy. 288. and accordingly Rot. Pari, i E. 4. n. 20. 
i^ feqtientihus, where by a£l: of parliament a great many no- 
blemen, that were of the party of H. 6. were upon the co- 
ming of E. 4. to the crown attainted and their lands forfeited 
to the king ; and fuch as were within the county paktine of 
Lcincafler annexed to the duchy of Lancafier, and the reft 
lodged in the crown ; yet there is a fpecial proviiion and ex- 
ception of the lands within the bilhoprick of Durham, vi-z^. be- 
tween the waters of Tyne and Tefe, and in the places called 
NorhamJJjire and Bedlingtofijljire within the county of Nor- 
thitmherlandy in which liberty and place the bilhop of Durham 
and his predecefTors of time, whereof there is no memory, 
have had roval ri"ht and forfeiture of war in the risht of the 
cathedral church of St. Cuthbert of Durham, as by concord in 
parliament in the time of the progenitors of our lord the 
king Edward IV. it hath been afTented. 

3. Altho by the ftatute of 26 H 8. and 33 K 8. before- 
mentlond it is enafted, that the king Ihall have the forfeiture 
of all lands, ^c. of the perfons attainted of treafon, yet in 
as much as in thofe a£ls there is a laving of the rights of 
others, the forfeitures for all treafons, that were within the 
ftatute 25 £. 3. and confequently were treafons at common 
law, by tenant in fee-iimple, are faved to the bifhop o£ Dur- 
ham and thofe, that have fuch royal franchifes of forfeiture 
of treafons ; for thefe ftand as they did before by the opinion 
of five judges againft four. P. 1 2 Eli^. Dy. 289. in the bilhop 
of Durham's cafe. 

4. But as to the forfeiture for new treafons enabled by any 
of thofe ftatutes the lords of franchifes Ihall not have their 
franchife ; this was agreed by all : but thofe new treafons 
that were enabled in the time of H. 8. or before, are ail re- 
peald by the ftatute of i Mar. cap. i. 

4 5- ^^^t 



Hifioria Placitorum Corona. 297 



5. But as to treafons, that flood by the ftatute of 2 5 £. 3. 
and therefore not repeald by i Mar. cap. i. yet as to the for- 
feitures of tenants in tail, or of lands in the right of churches 
or monafteries, the perfon that hath jura regalia Ihall not have 
them, becaufe the king before the a6l of z6 H. 8. was not 
entitled to the forfeitures of thofe eftates ; and the ftatute of 
26 H.%. ftands unrepeald as to the forfeitures for treafons 
within the ftatute of 2 5 £. 3 . thefe are the points refoived in 
that cafe of 1 2 Elini. 

And therefore it is obfervable, that in the ftatutes of 
5 JE//^. c.ii. whereby clipping is made treafon, tho the for- 
feiture of lands is only during the offender's life, and no cor- 
ruption ol blood, nor lofs,of dower, yet there are fpecial 
provifo's, that all perfons, which have any lawful grant to 
hold and enjoy the forfeitures of lands, tenements, goods or 
chatties of offenders, and men attaint of high treafon within 
any manor, lordlhip, town, pariJli, hundred, or other pre- 
cin6l within the realm of England and Wales ftiall and may at 
all times have like liberty to take, feize, and enjoy all ilicli 
forfeitures of lands, tenements, goods, and chatties, as ftiall 
come or grow within their liberties by force of the attainder 
of any perfon upon any offenfe made treafon by this a£l, as 
they might have done by virtue of any grant to them hereto- 
fore made. 

I do not find the like claufe to my remembrance in any 
other a6ls of new treafon either in that of i Mar. fejf. 2. 
cap. 6. for counterfeiting the privy fignet or fign manual, or 
in that of i 'i?' 2 Ph. iy Mar. cap. 11. for importing forein 
counterfeit coin made current by proclamation, or in that of 
18 E//:^. cap. I. concerning wafhing of coin, nor in any of 
thole temporary a£ls made for the fafeguard of the queen's 
perfon, ^c. fo that upon the reafon of the refolution of i 2 
Eli^. the patentees of goods or lands of traitors by patents 
granted before thofe ails, and particularly the bilhop of Dur- 
ham, whole claim is by prefcription, cannot have the goods 
c5r lands of perfons attainted for tlioie new treafons : vide i 3 
Eli-:i. cap. 1 6. a fpecial provifion in the a6l of attainder of the 
earl of Wejlmoreland and others ibr the rebellion in the Norths 

U u u that 



2^8 Hiftoria Placitorum Corona. 



that the queen fhall have and hold againft the bifhop of Duv 
ham and his fucceflbrs the lands, tenements, goods and chat- 
ties of the perfons attainted within the county palatine and 
franchife of the faid billiop. 

Nay, I cannot fee how the billiop of Durham can either 
by his antient chatters or prefcription claim the goods or 
lands of perlbns attaint for bringing in counterfeit coin con- 
trary to the ftatiite of 2 5 E. 3. for it feems that that was not 
treafon at common la\\% as may reafonably appear by what 
has been before faid touching that fubje^l. 



CHAP. XXIV. 

Concernifig^ declaring of treafons by parlia- 
ment, and tbofe treafons that ivere en- 
uBed or declared by parliament hetiveen 
the 29 of E. 3. and the i Mar. 



A Ltho the order of the ftatute leads us to confider of pC" 
^ ^ tit treafon in the next place, yet becaufe I intend to ab- 
folve the whole difcourfe of high treafon and mifpriJion of 
treafon, before I defcend to crimes of an inferior nature, I lliall 
proceed to a lull conlideration of the whole matter fpecially re- 
lating to high treafon, and fo far as the fame is not common 
to other capital ofFenfes : the ftatute therefore proceeds, " And 
" becaufe many other like cafes of treafon may happen in time 
" to come, which a man cannot think nor declare at this 
" pretent time, it is accorded, that if any other caie fup- 
" poied treafon, which is not above fpecihed, doth happen 
" I)efore any juftice, the juftice lliall tarry without going to 
" judgment of the treafon, till the caufe belhewed and declared 
5 " before 



Hifioria P lac it or urn Cor on ^e. 2^9 



a 
u 
a 
cc 



before the king and his parliament, whether it ought to be 
judged treafon or other felony ; and \{^ per cafe any man of 
this realm ride armed covertly or fecretly with men d^ 
arms againit any other to flay him or rob him, or take 
him or detain him, till he hath made fine or ranfom to 
hav^e his deliverance, it is not the mind of the king or his 
council, that in fuch cafe it Ihall be judged treafon, but 
Ihall be judged felony or trefpafs according to the law of 
" the land of old time ufed, and according as the cafe re- 
" quireth, ^c. 

This claufe confifts of two parts, the former, how trea- 
fons not Ipecially declared by this ftatute Ihall for the future 
be fettled. 2. It declareth, that a particular oftenfe therein 
raentiond, that was in truth formerly held to be treafon, 
ihall not for the future be taken to be fo. 

As to the former of thefe claufes touching the declaring of 
treafons not declared by this adf, I ihall puriue the hiffcorv 
thereof at large in what follows, only at prefent I Ihall fiib- 
join thefe few obiervations. 

1 . The great wiidom and care of the parliament to keep 
judges within the bounds and exprefs limits of this a£l:, and 
not to fuffer them to run out upon their own opinions into 
conftru£live treafons, tho in cafes, that feem to have a pa- 
rity of reafon {like cafes of treafon) but referves them to 
the deciiion of parliament : this is a great fecurity, as well 
as direftion, to judges, and a great fafeguard even to this ia- 
cred a£l itfelf. 

And therefore, as before I obferved in the chapter of levy- 
ing of war, this claufe of the ftatute leaves a weighty memento 
for judges to be careful, that they be not over hafty in let- 
ting in conftru6live or interpretative treafons, not within 
the letter of the law, at leaft in fuch new cafes, as have not 
been formerly exprefly refolv^ed and fettled by more than one 
precedent. 

2. That the authoritative deciiion of thefe cafus omiffi is 
reierved to the king and his parliament, i;/^. the king and 
both his houtes of parliament, and the moft regular and or- 
dinary w^ay is to do it by a bill declaratively j and therefore 

air ho 



z6o Hijloria Placitorum Corona. 

akho we meet with fome declarations by the lords hoiife alone 
in fome particular cafes, as in that of the earl of Northum" 
berUnd anno 5 H. 4. and that o{ Talbot i"] R. 1. tho they be 
deciiions and judgments of great weight, yet they are not au- 
thoritative declarations to ferve this a£l of 25 £. ^. but it 
muft be by the king and both houfes of parliament. 

As to the latter of thefe it has been formerly dlfcuffed in 
the fecond chapter. 

This at common law was held treafon, and the particular 
reafon of the adding thereof in this place was in efFe£l to re- 
verfe the judgment given in B.R. P. 2 i £. 5 . Rot. 2 3 . in Sir 
John Gorbegges cafe {a) ; and touching this whole matter of 
riding armed, i^c. vide qiu diBa fimt fupra cap. 14. j). i 3 5. 
^ fecj. 

Only the printed ftatute varies from the parliament-roll of 
25 JS. 3. ^. 2. ». 17. for whereas it is printed In the late fla- 
tutes (covertly or jecretly) the parliament-roll is chivach arme 
defcovert ou fecretment, and accordingly the old written ma- 
nuicript ftatutes are written thus, chivach arme defcovert ou 
en priiy en le realm, ^c. which mifprinting poffibly hath macie 
iome miftakes in judgments given of high trealon, as if to 
ride privily and covertly upon fuch a private attempt were 
not treafon ; but to ride difcovert, openly, were treafon, when 
in truth neither in one cafe or the other it is treafon, neither 
at this day nor at common law, if it be only upon a parti- 
cular or private quarrel, as in the cafe of 20 £. i. between 
the earls of Gloucefter and Hereford (b) ; and this of Gerbegge, 
tho it were more guerrino ^ vexillis explicatis. 

But now to retume what is before promifed, vi^. touching 
the firft matter, namely treafons not declared by the Ifatute 
of 2 5£. 3. we fhallfind, that between that flatute and 1 Mar. 
there were treafons enabled or declared of thefe kinds : 

1 . Such as were fimply declarative treafons, or io many ex- 
pohtlons of the ifatute of 2 5 £. 3. 

2. There were new treafons, that were fimply enacled, 
and not declared only, that were perpetual in their Inlfltu- 
tion, but repeald by the flatute of i Marine. 

I _ 3. There 

(.-?) vide antca f. 80. £i? i;8. {!) fupra /. 135. Ryl f'ac. farl. /. 77. 



Hi /fori a Placitorum Cor once. z6i 

3. There were new treafons, that feem only temporary 
or fitted to the reigns of thofe kings, in whole time they 
were made. 

4. There were fome treafons, that were perpetual, but 
more explicite declarations or rather expolitions of the ftatute 
of 2 5 £. ; . which yet ftand repeald by the ftatute of i Mar. 

And here I muft advife the reader to take notice of thefe 
cautions. 

1. Becaufe the hereafter mentiond ftatutes are many, and 
confifting of divers claufes, that he rely not barely upon the 
abftra£ls thereof here given, becaufe polTibly there may be 
miftakes or omillions in thofe abftra£ls, but perufe the fta- 
tutes themfelves in the books at large. 

2. That tho generally it be a fair topical argument, that 
when oftenfes are made treafons by new and temporary a61:s, 
they were not treafons within the ftatute of 2 5 £. 5 . for if 
they were, they needed not to have been enafted to be trea- 
fon by new ftatutes, as introdu^live of new laws in fuch 
cafes, yet that doth not hold univerfally true, for fome 
things are ena£l:ed to be treafon by new, yea and temporary 
laws, which yet were treafon by the ftatute of 25 £. 3. as 
will appear in the fequel. 

And therefore the ftatutes o£ i ^ z Ph. ^ M. cap. 3 . i E. 6. 
cap. 12. 23 Eli^. cap. 1. making feveral offenfes felony have 
this wary claufe, the fame not being treafon within the fiatute of 
25 E. 3. 

And hence it was, that whereas by the ftatute of i 3 £//^. 
cap. I. compailing the queen's death and declaring the fame 
by writing or printing^ is enabled to be treafon during the 
queen's life, but the delinquent is by that ftatute to be char- 
ged therewith within fix months, and Throckmorton was gene- 
rally indifted for compafling the queen's death, and the overt- 
acl was by making a writing declaring convenient landing 
places for the SpaniJJ) forces, and the naming of divers popifti 
gentlemen in writing, who would be aftiftant to that delign, 
and communicating it to the Spanifh embaflador, and Throck- 
imrton excepted to the proceeding, becaufe not within lix 
months according to the ftatute of i 3 £//^- that exception was 

X X X over- 



262 Hijloria Placitoriim Coronet. 

Civer-ruled, becaufe it was a charge of treafon and an overt- 
a£l within the ftatiite of 25 £. 3. which hath no fiich re- 
ftriftion, and thereupon he was convi£l ;ind executed. Canid. 
Annals Jul? dmo I'y'S^. p. ic)^. and the h'ke was done upon 
the hke exception In the cafe of the earl of Arundel , quod 
vide Camd. Annals fub anno i $'Sg. p. ^16. 

3. But where an a£l: of parhament made for the fafety of 
the king or queen's perfon or government en?£ls any cffenfe 
to be felony only, or a mifdemeanor only punllhable by fine 
and Imprifonment, without that wary claufe abo\'e mentiond, 
it is a great evidence and prefumption, that the fame was not 
treafon before, and a judgment of parliament in point, for it 
can never be thought, that the parliament would in fuch cafes 
abate the extent of 2^ B. 3. or make that lefs than treafon, 
which was treafon by that afl. 

I Ihall as near as I can purfue the order above mentiond, 
but fome intermixtures there will neceilarily be of the many 
particular treafons enabled by fome llatutes, fome of which 
were within the ftatute of 25 E. 3. and I fhall follow thofe 
in every fucceeding king's reign. 

In the time of king Edward III. I find no declarations of 
treafon after the ftatute of 2 5 £. 3 . 

Only I find fome what like it in the attainder of Thorp 
chief juftice of the king's bench for bribery {c) and other of- 
fenfes, who was thereupon fentenced to death, before fpecial 
commiffioners {d) afiigned ad judicandum fecundum voluntatem 
regisy in relpeft of the oath he had made to the king and 
broken, whereby he had bound himfelf to that forfeiture, 
fi ale encoimtre fon Jerement : it is true he had judgment, but 
there was no execution ; this judgment and the whole pro- 
ceeding is entred in patent-roll of 2 4 £. 3 . paj-t 3 . »?. 3 . dorf. 
and was afterwards removed into the lords houfe in the par- 
liament held in oBahis purifcationis 2 ^ £. 3 . which was a year 
"before the parliament held Wednejday in the feaft of St. Hillary 
25 E. 3. wherein the declaration ©f treafon was madej and 
2 in 

(c) He was juftice of affize /« cow' felony, that fliould have Iffued againft 
■Lincclii, and took bribes of feveral to them, 
iiay an exigent upon an indiitment for "(d)T\iecs^t\sofJru7:M,W»rmck,^c. 



Hi/for i a Placitorum Cor on ^e. 263 

in that parliament of oBabis purifcationis, n. i o. the judgment 
was afnrmied good, de puis qe je obliged mefme par fon fcrement 
a tiel pennar.ce, fil fait at encotmtrej iff connujfeit., quil avoit re- 
ceive douns coimtre fon dit fcrement : but with this caution for 
the future to prevent fuch an arbitrary courie of proceeding, 
^ fur ceo y fuit accord par les grants de mefme le parlement, 
qe fi nul tiel cafe aueigne defore en avant de mil tiel, que noflre 
feigneur le roy prigne devers lui des grants, qe lui plerra, ilf par 
lour bone avyfe face outre ce qe plefe a fa royal feignory (e) -, but 
this comes not to our purpofe concerning treaion. 

As to the time oi' R. 2. it was a fruitful time for declaring 
and enhanfing of treafon in parliament. Rot. Pari. 3. R. 2. 
«. 18. pars I. the cafe of Jean Imperiall(f) who was fent as 
agent from the duke and commonalty of Genoa, and coming 
hither by the king's fafe condu£l: was murdered ; the inquiii- 
tion before the coroner was brought into parliament, and in 
purfuance of this claufe of 25 jE. 3. it was declared by the 
king, lords and commons, to be treafon. 

This declaration being by the king and both houfes of par* 
liament was a good declaration purfuant to the a£l of 2 5 £. 3. 
but is not of force at this day, i . Becaufe it was but a p^rti* 
cular caie, and extended not to any other cafe, as a binding 
law but only as a great authority. 2. Becaufe it being not 
within the exprefs provilion of the ftatute of 25 E. 3. it 
ftands wholly repeald as treafon by the ftatutes of i E. 6. and 
I Marine. 

Rot. Pari. I R. 2. ». 38. the judgment againft Gorneneys and 
Weflon for betraying the king's caftles in France mentiond be- 
fore cap. 1 5. /). 1 68. where Weflon had judgment to be drawn and 
lianged ; this judgment was given by the lords at the petition 
of the commons in parliament, but makes not much in the 
point of declaration of treafon, becaufe, i . If done, as is fup- 
pofed, by treachery and bribery, it was an adherence to the 
king's enemies. 2. Being a declaration or judgment only by 
the lords, and not formally by the kang, lords and commons, 

' it 

(r) Tliere h llkewife a provifo added, gernnf, tS haletit leges Angli'jc regales ad 

tliat this fhou'.d not be drawn into pre- ciijlodtendam. 

cedent, fid fiUimmodo verfus eoi, qui (f) Co. T. C. }. 8. vide fv.^ra /. 

fraedltluin facramentmn feeerunt ^ fre- 8 5 . 



2^4 Hifioria Placitorum Corona'. 

it is not fuch a decLiration of treafon, as the a£l of 25 E. 3. 
requires in cafes of treafon not thereby declared. 

Rot. Pari I I -R. 2. ^ars 2. per totum, the great appeal in par- 
liament by the duke ol Gloucefter and others againlt the arch- 
bilhop of Tork, duke ol Ireland, Trejilim, Uske, Blake, Holt, 
and others containing divers articles, which lurely were not 
treafon within the ftatute of 25 £. 3. yet had judgment of 
high treafon given againft them by the lords in parliament, (g) 

Upon the impeachment of the commons againft Simoff 
Bark, Beauchamp, and others, many of them had likewife 
judgment of high treafon given againft them by the lords in 
parliament. (^) 

Altho the king did in fome kind outwardly agree to thefe 
judgments, and the commons were a£live in it, and Rot. Pari. 
II R. z. pars i. w. 50. public thanks were given to the king 
by the lords and commons in full parliament, de ceo, qil lour 
avoit fait cy plein juftice, yet this was no declaration of parlia- 
ment of treafon purfuant to the ftatute of 25 £. 3. becaufe 
the king and commons did not confent per modim legis decla- 
rative, for the judgment was only the lords. 2. Becaufe it 
wa^ but a particular judgment in a particular cafe, which was 
not conchilive, when the like cafes came before judges. 

This parliament of 1 1 jR. 2. was repeald by the parliament 
of 2 I i^. 2. and that of 2 1 R. 2. alfo repeald, and the parlia- 
ment of 1 1 jR. 2. enacled to be holden according to the pur- 
port and effeft of the iame by the ftatutes of i H. 4. cap. 3 
^ 4. but this did not alter the ftatute of 1 1 i^. 2. and make 
thofe judgments, which were given by the lords in i i i^. 2. 
of any other value than they were, and confequently a- 
mounted not to any declaration by parliament, that thefe 
which the lords adjudged treafons in 1 1 2?. 2. were or ought 
to be fo held ; and if any fuch conftru£fion might be made 
upon the confirmation of i H. 4. cap. 4. yet the iame was re- 
peald by the ftatute of i H. 4. cap. i o. in the fame parlia- 
ment ; and if not, yet certainly i JS. 6. and i Mar. have 
wholly taken away the force of thofe declarations, as Ihall be 
Ihewed. 

2 Rot. 

(S) See Stare Tr. Vol. I. /. r. C*) Tlid. /. rj. 



Hifioria Placitorum Coron£. l6^ 

Rot. Pari i-j R.i. n.io. Talbot's, cafe, in confpiring the de* 
fl:ru£lion oi the dukes of Aquitain and Gloiicefler the king's 
uncles, and other great men, Et fur ce firent divers gents lever 
armies ^ arrayes a faire guerre en ajfembles i5f congregations 
in tres grand isf horrible numbre : this was declared trealbn by 
the lords in parliament, and a proclamation iiTued to render 
himfelf, or otherwife to be attainted of treafon : how far 
this was treafon or not within the ftatnte of 25 £, 3. hath 
been before confidered, but certainly, if it were no treafon 
declared by the particular purviews of 2 5 £. 3 . it is no fuch 
authoritative declaration of treafon in parliament^ as this a£l: 
requires in treafons not declared ; and if it were fuch an au- 
thoritative declaration, it binds not now as fuch, becaufe all 
treafons are reduced to thole exprelTed in the ftatute of 2 5 
£.3. by the ftatutes of i H. 4. cap. 10. 1 E.6. cap. 1 2. i Mar. 
cap. I . and treafons declared, as well as new treafons enacledj 
are by thefe ftatutes fet alide, farther than the very declara- 
tion of 2 5 £. 3. extends. 

Rot. Pari. 21 R. 2. quod vide inter flat ut a ziR. 2. cap. 2, 3^ 
4, 1 2. fome new llatutes of treafon were enabled, others 
were declared ; by cap. 2. it is enacted, that the procurers of 
any new commUlion like that, (for the obtaining of which 
the archbilKop of Canterbury., isfc. were in that parliament at- 
tainted) being convi6l in parliament ihould be guilty of high 
treafon : again, cap. 3 . If any be convi£l in parliament of the 
compailing of the king's death, or to depofe him, or to ren- 
der up his homage to him, or of railing war againlf the king ; 
and cap. 4. The procurers or counfellors to repeal the judg- 
ments given in that parliament, if convi6l in parliament, 
are guilty of high treafon : other treafons were declared, as 
namely thofe nine rank anfwers to the king's queftions, which 
are all recited and affirmed, and adjudged good and fuflicient 
by the i 2 th chapter of that parhament ; other points were 
judged, as namely, that the procuring of the commiffion for 
regulating the milcarriages in government anno -j R. z. and 
the execution thereof by the archbilliop of Canterbury and 
others was high treafon. 

Y y y And 



z66 Hijioria Placitorum Corona. 



And tho it is true, that fome of the points enafled to be 
Treafon by the 3d chapter were in truth treafons by the fta- 
tute of 25 E 3. if there were an overt-a£l:, namely compaf- 
fing the death, or depofmg the king, or levying war, yet 
thefe ftatutes and thefe declarations by the parliament of 2 i 
R. 2. are wholly fet aiide ; and the ftatute of 2 5 £. 3. governs 
the whole matter of high treafon, notwithftanding any of the 
extenfions, enaflings, or declarations of the parliament of 2 i 
jR. 2. or any of the judges therein mentiond, i;/^^. Belknap, 
Trefilian, Bolt, Fulthorp, Biirgly, Thirlinge, Bikhill and Clopton, 
for the parliament of 2 1 i^. 2. is wholly repeald by i H. 4. 
cap. 3 <^ 4. and the parliament of \i R. i. wherein Belknap 
and Trejilian were judged traitors for delivering tliofe extrava- 
gant opinions (h) is revived and affirmed ; and alfo by the 
ffatutes of I E. 6. and 1 Mar. the treafons enabled or newly 
declared by the parliaments of 1 i ^ 2 i i^. 2. are repeald. 

And tho thofe opinions of the judges Trejilian, Thirlinge 
and the reft had the countenance of the parliament of 2 i J?. 2. 
yet they had the difcountenance of the parliament of 1 1 J?. 2. 
and I F. 4. which repeald the parliament of 2 i i^. 2. and 
ttand at this day unrepeaid in their full ftrength, excepting 
only fuch treafons as were newly made, or newly declared by 
thofe parliaments : tho the ftatutes of i E. 6. and i Mar. have 
taken away thofe treafons, which either the ftatute of 1 1 i^. 2. 
or I H. 4. had introduced more than were in the ftatute of 
25 £. 3. yet it hath not taken away the efficacy of the par- 
liaments of 1 1 i^. 2. and I H. 4. as to their declarations, that 
the extrajudicial opinions oF thofe judges were falfe and erro- 
neous ; but in that refpe£l the parliaments of i H. 4. and 1 1 
R. 2. are of force, as to the damning of thole extravagant 
and unwarrantable opinions and declarations. 

I come now to the time of Henry IV. wherein I find little : 
in anno prima in parliament inter Placita Corona, John Hall was 
convift before the lords in parliament of the murder of the 
duke of Gloucefler, artd judgment given by the lords per ajfent 
du roy, that altho it were only murder, yet the offender 
ftiould have the judgment of high treafon, vi^. to be drawn, 
^ hanged, 

ao Co.'P.c. /. 12. 



Hijioria Placitorum Coroude, 16"] 

hanged, embowelled, his bowels burnt, his head cut off, and 
quartered, and his head fent to Calice, where the murder was 
committed, which was executed by the marfhal accordingly : 
this was no declaration of treafon, but a tranicendent punilhf 
ment of the murder of fo eminent a perfon. 

I H. 4. cap. I o. " It is accorded, that in no time to come 
** any treafon be judged otherwife than it was ordained by the 
" ftatute of king Edxpard III." This at once fwept away all 
the extravagant treafons introduced in the time of J^. 2. ei- 
ther in over much favour of popularity, or over much flat-* 
tery to prerogative, for they were of both forts. 

Rot. Pari. 5 H 4. ». I 2. There is a declaration of an ac-^ 
quittal of the earl of Northumherland from treafon ; quod vide 
antea cap. 14. p. i 36. but I find no declaration nor a£l: of 
new treafon, in the time of H. 4. he was as good as his pro* 
mife by the a£l: of i H. 4. cap. 10. for he contented himfelf 
with the declaration made by 25 £. 3. 

In the time of H, 5. 

By the ftatute of 2 H. 5. cap. 6. " It is ordained and de^ 
*' clared that manflaughter, robbery, fpoiling, breaking of 

truce, and fafe condu6ls, and voluntary receipt, abetment, 

procurement, concealing, hiring, fuftaining, and maintain- 
" ing of fuch perfons to be done in time to come by any 
" of the king's fubjefts within England, Ireland, or WaleSy 
" or upon the main fea Ihall be judged and determined trea* 
" fon done agalnft the king's crown and dignity ; and the 
*' confervator of the truce to have power by the king's com- 
*' million and by the conl million of the admiral to inquire 
" thereof;" But this ftatute as to treafon is particularly repeald 
by the ftatute of 20 H. 6. cap. 1 1. but whether the general 
ftatutes of I E. 6. cap. 12. i Mar. cap. i. had repeald it as to 
treaions done upon the fea may be a queftion, becaufe it hath 
been ruled, that thofe ftatutes extend not as to trials of treafon 
done upon the fea by the ftatute of 28 H. 8. cap. \$. dcquo infra. 

The ftatute 3 A ^ cap. 6^7. it is true, is a declarative 
law, that clipping, waftiing and filing the king's coin is trea- 
fon within the Itatute of 2 5 E. 3 . and judges of alTife and 
juftices of peace have cognifance thereof j but even tliis decla- 
rative 



ii 



z68 Hiftoria Placitorum Coron<^. 

ratlve law is repeald by the ftatute of i Mar. as it is declared 
in the ftatute of 5 Eli-zj de quo antea. 

As to the judgment of treafon given in Sir John Oldcajlles 
cafe, Rot. Pari. 5 H. 5. par. i. n.ii. tho the judgment be gi- 
ven in parliament, yet it is barely upon the account of com- 
paffing the king's death, and of levying of war, which was 
exprelly within the ftatute of 25 E. 3. as appears before 
cap. 14. p. 142. 

Touching the times of H. 6. 

Rot. Pari. 1 H.6. n.i?>. It appears, that John Mortimer was 
committed for fufpicion of treafon againft H. 5. and 23 Feb. 
2 H. 6. brake prifon, and efcaped, for which he was indi£led 
2 5 Feb. 2 H. 6. at Guildhall, London, before commiflioners of 
oyer and terminer fetting forth the matter, and that prifonam 
pr^diStam falfb isf voluntarii fregit ; the record by the king s 
command was fent into parliament, and by the king's com- 
miffioner ad tenendum parliamentum, and the lords at the re- 
queft of the commons, it was affirmed a good indi£l:ment, 
and Mortimer had judgment to be drawn, hanged and quar- 
tered, and his lands and goods forfeited to the king by the 
judgment of the lieutenant, lords, and commons, by an a£l 
made then for that purpofe. 

This it is true was an authoritative declaration of treafon 
in this particular cafe purfuant to the claufe of the ftatute of 
25 E. 3. 

But it refted not here, for in the fame parliament, n. 60, 
a general ftatute paffed, " Qtie ft afcun perfon foit indite, 
" appelle ou priie par fufpicion de grand treafon & pur ceft 
" caufe foit commifle & detenus in prifon & efcape volun- 
" terement hors du dit prifon, que tiel efcape foit adjudge & 
" declare treafon, ft tiel perfon ent foit- duement attaint fe- 
** Ion la ley de terre. Et eient les feigneurs de fee en tiel cas 
" les efchetes & forfeitures de terres & tenements de eux 
" tenus par tiel perfons iftint attaints, come de ceux, que 
" font attaints de petit treafon ; Et teigne ceft eftatute lieu 
** 8z e&S: del 20 jour de Otlobre darrein paffe tanque al pro- 
" chein parlament. 

" Ro*. Soit fait, come eft defy re par la petition. 

4 This 



Hijloria Placitorum Corona. 26^ 

This parliament began 20 OSi. 2 H. 6. 

The things obfervable hereupon are thefe, i . That to ref* 
cue a perfon, that is a traitor, out of prifon was treafon at 
common law, and fo continues at this day within the ftatute 
of 25 E. 3. 2 Co. Inflit. p. 589. and 1 H. 6. 5. L 2. But if 
a man committed for treafon breaks prifon and efcapes, this 
is not treafon at common law. 3. Tho it be felony by the 
ftatute de frangemibus prifonam, yet it is not made treafon bv 
that ftatute. 4. But if it were treafon by that ftatute, yet 
it is corre£led and made not treafon by the ftatute of 2 5; £. 3 . 
and I H. 4. and therefore in this cale it was made treafon 
merely by the judgment of parliament, and ftatute of 2 H. 6. 
was but temporary and expired by the next parliament. 
5. That the judgment itfelf in Mortimer^ cafe, tho an au- 
thoritative declaration, was not at all binding in other cafes 
for two reaions, i. Becaufe it is checked and controld as to 
any luch cffe£l by the general a£l of parliament of 2 H. 6, 
which was to continue only to the next parliament ; and 2. 
Becauie it was but a particular judgment of parliament in 
that particular cafe, to which it was particularly applied. 

But howloever, that queftion is now put out of queftion 
by the general a£l: of i Mar, cap. i . which enervates the force 
ot this judgmxcnt and declaration ; for i Mar. repeals declara- 
tive laws of treafons as well as enatling laws, and leaves the 
judges to judge ftridly according to the ftatute of 2 5 £. 3. as 
if no fuch judgment had been given in parliament. 2 Co. Inflit, 
p. ^89. and therefore it feems ftrange to me, that the judges 
took any notice of 2 H. 6. in Benfted's cafe to ground any 
opinion on. (/) 

And thereiore, altho in the late aft of attainder of the earl 
of Strafford^ there was a provifo added, that it Ihould not be 
conftrued, that the treafons therein charged ihould be a rule 
for judges to proceed by in other cafes, it feems a cautious 

Z z z but 

(i) Cro.Car. 58;. .7("W4^5. It was fon, wherein traitors be, is high treafor, 

the cafe in i // 6. 5. b. and not the ila- tho the parties did not know, that thire 

tutc of 2 H. 6. on which the judges were traitors there, is not warranted by 

grounded their opinion, ahho as that o that cafe, which is of one, who brake 

pinion is cxprcit in Cro.Car. 583. and ^!\{on,hiO-ivit?g certain f'erjb7ii to he pri- 

Kcl. 77. -viz. that the break ng of a pri- joncrs ifi the fcjd prifon for treafcn. 



Z70 Hijioria Placitorum Coronce. 



tut needlefs provifo, becaufs it was a particular judg- 
itient,- that did not egrcdi perfonam, and no general declara- 
tive law to ferve the ftatute of 2 5 £. 3 . For there may he 
collateral reafons not only in policy, but in juftice lometimes 
for a parliament to vary the punilliment of crimes, in fub* 
ftance the fame, when differenced by circuraftances, in feve- 
ral perfons. 

8 H. 6. cap. 6. Burning of houfes maliciouily or wickedly 
to extort fums of money from thofe, whom the malefa£lors 
fpare, is made high treaion with a retrofpeft to the firll year 
of the king's reign, faving to the lords their liberties, as in 
cafe of felony. 

Two things are obfervable upon this a6l, i. That had it 
not been fpecially provided againft, the lords had loft their 
efchetes by making it treaion. 2. That this a£l, tho perpe^ 
tual in its conftitution, yet was repeald by i Mar. cap. i. and 
after that repeal it remained felony, as it was before, and fo 
continues to this day. 

Rot. Pari. 11 H. 6. n. 4^. A petition that John Carpenter^ 
who had committed a barbarous murder upon his wife, for 
which he was outlawed and in prifon in the king's bench, 
might for example's fake by authority of parliament be judged 
a traitor, and that the judges might give judgment againft 
him to be drawn and hanged, faving to the lords their efchetes. 
Ro\ Pur ceo J quil jemhk encountre le liberty de feint efglis le roy 
fe avifera. 

iQ H. 6. cap. 3. The coming of people out o£ Wales or the 
marches of the lame into the counties adjacent, and taking 
and driving away cattle, and their abetters and receivers know- 
ing thereof, is made treafon againft the king, faving to the lords 
marchers, of whom the offenders, receivers or abetters held 
their lands, the forfeiture thereof and of their goods and 
chatties, when attainted ; this a61: was to continue for fix 
years : nota, the lords had loft their efchetes and forfeiture of 
the offenders goods, if it had not been fpecially provided for, 
becaufe made treaion and a new treaion, which was not be- 
fore, for the lord marchers had not only forfeiture of goods 
of felons, but royal efchetes and forfeitur-e of traitors goods 

4 foE 



Hifloria Plackorum Corona. 271 

for the nioft part ; but that franthiie, which was hj prefcrip° 
tjon, could not extend to new treafons. 

I find nothing more relating to this matter in the time cf 
Henry VI. 

The impeachment of the duke of SaffolP^ by the commons 
for treafons and mildemeanors contained many articles of high 
treafon within the ftatute of 2 5 £. 3 . namely, adhering to 
the kings enemies ; but the whole m.atter beinc^ at laft left 
to the king, he was declared by the king clear of the treafons, 
and for the rell the king by a kind of compolition orderd 
him to be baniilied for five years. Rot. Pari. 28 H. 6. w. 18, 
19, 20, ^f» 

■ As to the reigns of Edward IV. and Richard 111. tho in 
thofe great revolution?, that happend in the latter end cf 
Henry YL the beginning of Edivard IV. the time o^ Richard III. 
there are niany afts of attainder cf treafon of particular per- 
Ibns, that adhered to either party then contending for the 
crown, according as the fnccels of Vv^ar fell to one fide or 
the other, as namely Rot. Pari i?^ H.6. n. i.— 3^, ^c. many 
of the duke of YorKs party were attainted of treaibn by adi: 
of parliament. Rot. Pari. 1 E. 4. n. 6. — i 5, iSjc. the numerous 
companies of the party o^ HenryNl. v^'ere attainted by parlia- 
ment ; the like was done in the lliort regreis of H 6. i 1 . 
i5. 4. in a parliament held in that fhort relumption of the 
crown by Henry VI. Again, the like Vv'as done in the parlia-* 
ment of i 2 £. 4. upon the regreis and re-expiiliion of Hew 
r); VI. . Again, Rot. Pari, i i?. 3. divers perfons cf great qua- 
lity, that cppofed the pretenfions of Richard III. were attainted 
by aS: of parliament ; and the like was again done in the 
parliament of i H. "j. againft the affiffants of Richard III. 
Every new revolution occafioned the attainder by parliament 
of the moif conliderable of the adverie party ; yet in all this 
time I find no general declaration or general enacting of new 
treafons by parliament. 

I come to the time of Henry VIL 
■ In this time I find but one new treafon, namely the fta- 
tute of 4 H. 7. cap. i8. whereby the counterfeiting of forein 
€oin made current in this realm is made high treaion. 

But 



272. Hifioria P lac it or urn Corona. 

But this a£l was repeald by the (latute of i E. 6. c^p. i 2. 
and I Mar. cap. i . and another a£l made to the fame purpofs 
in I Mar. fejf. 2. cap. 6. 

This wile prince duly confiderinj^ the various revolutions, 
that had formerly happened in this ?i:nf;dom touching the 
crown eipecially to the houfes of Tork and Lancafler, and that 
every fuccefs of any party prefently fubjected ail, that oppc- 
led the conqueror, to the penalties of treafon, and weighing 
that, akho by his marriage with the heir of the houfe of 
Tork he had reafonably well fecured hi<= pofFeifion of the 
crown, yet otherwife his title, as in his own right, was not 
without lome difficulties: he therefore made a law, not to 
ena£l treafon, but to give fome fecurity againft it, w'^. i i 
H. 7. cap. I. " That all perfons, that attend upon the king 
" and ioverein lord of this land for the time being in his 
" perfon, and do him true and faithful fervice of allicreance 
" in the fame, or be in other places by his commandment 
" in the wars within this land or without, that for the faid 
deed and true duty of alligeance he or they lliall be in no 
wile convi£l or attaint of high treafon, nor of other of- 
fenfes for that caufe by a£l of parliament, or otherwife 
by any procefs of law, whereby he or any of them fhall 
now forfeit life, lands, tenements, rents, pofTeflions, here- 
" ditaments, goods, chatties, or any other thing, but be for 
" that fervice utterly difcharged of any vexation, trouble, 
" or lofs ; and if any aft or a£ls, or other procefs of law 
" hereafter thereupon for the fame happen to be made con- 
" trarv to this ordinance, that then that aft or afts or other 
" procefs of law whatfoever they be, ffand and be utterly 
" void ; provided always, that no perfon or perfons lliall take 
" any benefit or advantage by this aft, which fhall hereafter 
" decline from his or their laid alligeance." Upon this aft 
theie things are obiervable. 

I. That this aft was not temporary or for the life of 
king Hemy VII. but was perpetual, and extended to all fuc- 
ceeding kings and queens of this realm, for it is for atten- 
dants upon the king or foverein lord of this land for the 
time being 

2 2. It 



a 



Hijloria Placitorum Coront^. itjT^ 

2. It is obfervable, that this a£l: extendeth to a king de 
foBoy tho not de jurc^ for in truth fiich was Hmry VII. for 
his wife was the right heir to the crown, and his regal power 
was principally by an att of parliament made i H, "]. before 
his intermarriage with his queen, tho both titles were derived 
to his defcendents, vi^. Henry Wll. and in default of ifTue, 
to his fifter, from whom our prefent foverein is deicended *. 
and this a£l:, tho extended to his fucceffors, which were kincrs 
de jurey as well as de fafio, yet was made for the fecurity of 
himfelf and his fervants in the firft place, which appeareth 
more fully alfo by the preamble. 

3. That tho this a£l: might fecure the attendants on the 
Jibing in his wars againft impeachments in an ordinary courfe 
of law, and might as to this purpoie exempt them flrom the 
danger of any treafon by the ilatute of 2 5 £. 3 . as adherers 
to the king's enemies, yet it was a vain provifion againft fu- 
ture acts of parliament, whofe hands could not be bound by a 
former a£l from repealing it, or taking away the effe£l thereof 
in part or in all. 

It is true, fince that time this kingdom hath had no great 
experience of changes of this nature, nor need to make ufs 
of the adv^antage of this if:atute : it is true queen Mary began 
her reign 6 July 1553. ftie was crowned 6 OSlob. following, 
her firft feilion of parliament began 5 06lob. 1553. which 
was the day before her coronation, and the fecond feflion 
thereof was held by prorogation 24 OSlob. i Mar. 

Upon that 6th. of July, which was the day of king Ed* 
Tvard's death, and before queen Mary was aftually fettled, 
the lady Jane Gray fet up a title for herfelf, and continued in 
fome kind of regal power, until the i ft of Auguft following, 
and during thofe twenty-four days the ffyles of deeds, ftatutes 
and other things (and poflibly alfo procefles) were made in 
her name, and a fpecial ail was made i Mar. fejf. 2. cap. 4, 
to make them effeilual, and to be pleadable in the ftyle, name, 
and year of queen Mary ; fo that the lady Jane feemed art 
intruder for about twenty-four days ; but the truth is, fhe 
was not fo much as an uiurper, or a queen de faSio : 
|ind; theie her alhftunts in that bufinefs, 7;/!^. the archbifhop 

4 A gf 



Z74 Hifioria Placitoriim Corona. 

of Canterbury, the duke of NortbumbcrLind, the fald lady 
jfane and d'n^ers others were attainted before commiilioners 
of oyer and terminer ; and thofe attainders confirmed by 
parliament i Mar. fejf. 2. cap. \6. and note in that adi of at- 
tainder a fpecial provilo, that the pciTeilions of the arch- 
birnoprlck of Canterbury fhould not be forfeited bv that at- 
tainder or a£l: of parliament ; poiTibly they thought that the 
general words of that a6l, or at leaft the Itatutes of 26 H. 8. 
and 3 3 H 8. which gave forfeitures for treafon againfl fuc- 
cefTors, and were not repeald by i Mar. might otherwife have 
forfeited the lands of the archbilhopriclt by the* attainder of 
the archbilhop ; but of this fupra cap. 23. ^. 252. 

4. But what was the meaning of the provifo in that a61: of 
II H. -]. " That no perfons fhall have the benefit of this aft, 
*' who fhall decline from his alligeance," is dark and dubious. 

But thefe queftions never failed to be foon decided on the 
vigor's part by their parliaments, which were always obfe- 
qulous enough in thcie matters to the vi£l:or, and ready to 
pafs afts of attainders for his fafety and their own, againft 
which no fecuriry was, nor could be given by this ad of 
1 1 H. 7. 

I come now to the reign of Henry VIII. which was a reign, 
wherein ails concerning treafon were exceedingly multiplied, 
and they are of three kinds : i . Such ads, as conftituted or 
declared treafon. 2. Such ads, as concerned the trial of 
treaion. 3. Such as concerned the punliliment or forfeiture 
of treafon. 

By the ilatute of 22 H. 8. cap. 9. Richard Rofe for wilful 
polloning of divers perfons is by authority of parliament at- 
tainted of high treafon, and that he be boiled to death : and 
by authority of parliament murder by wilful poifoning is 
made treafon for the future, and the offender to be boiled to 
death, and not to have benefit of the clergy : juftices of peace 
to have power to inquire of this offenfe, and alfo of coun- 
terfeiting coin of any forein kingdom, fuffered to be current 
here, the title of lords to efchete of the lands of offenders in 
poiionlng is faved to them, (k) 

i This 

(k) Co. T. C. /. 48. 



Hi fi or I a P /ad tor urn Corona. 275* 






a 
cc 
<( 

iC. 



ii 



This treafon is repeald by i Mar. cap. i . and the fame re* 
mains felony as before. »• 

By 26 H. 8. cap. 13. " Malicioufly to wifli, will, or delire 
" by words or writing, or by craft to imagine, invent, praftifc, 
or attempt any bodily harm to the king, queen, or their 
heirs apparent, to deprive them, or any of them of their 
dignity, title, or name, or flanderoiiily, or malicioufly to 
piiblilh by exprefs writing, or words, that the king, our 
*' lovereign lord is an heretic, jchijmatic, tyrant, infidel or ufiiv 
■per, or rebel) ioufly to detain any of his caiHes, i^c. in this 
realm, or other his dominions, or rebel lioufly to detain or 
keep any of his {hips, ammunition, or artillery, and do not 
humbly render the faid caftles, fortrefTes, fliips, or artillery 
to our foverein lord, his heirs or fucceffors, or fuch as fhall 
be deputed by them, within fix days after they be com- 
manded thereunto by proclamation under the great feal, is 
enabled to be treafon in the offenders, their aiders, counfel- 
"' lors, confenters and abetters : forein treafon to be tried irt 
any county, where the king iliall appoint by commlifion. 
I, It lliculd feem, that this a£l was intended to be perpe- 
tual, for in it and the fubfequent claufe of forfeitures it men- 
tions the kirg, his heirs and fucceffors. 2. Part of this feems 
to be treafon by the ftatute of 1$ E. 3 • "vi^. the pra6lifmg 
any bodily harm, if there be an overt-acl, and alto the rebel- 
lious detaining of the king's caftles after fummons by proclama- 
tion; the reft are purely new treafons. 3. But whether it was 
temporary or perpetual, all treafon refting fingly, as ena£l:ed by 
authority of this aft, is repeald by i E. 6. and i Mar. and 
yet the latter claufe (/) concerning forfeiture in relation to 
all treafons within 25 £. 3. ftands unrepeald j de quo vide fu- 
pra i^ infra. 

By 27 H.?>. cap. 2. counterfeiting prl\^y feal, privy fignet^ 
or fign manual is made treafon, and the offenders, their coun- 
fellors, aiders, and abetters to iuffer and forfeit, as in cafe of 
treafon ; this is repeald by i Mar. cap. i . and then re-enadled 
by 1 Mar. cap. 6. 

By 

(/). By this latter claufe the offender, hereditaments of any eftate of inheri- 
i£c. fliall forfeit to the king, his heirs tancc in ufe or pofleffion, by any right, 
and fucceflbrs all lands, tenements and title or means. 



276 Hifloria Placitorum Corona . 



By 2') H.Z. C(ip. 11. the divorce between the king and 
queen Katharine is affirmed by parliament, and aifo the mar- 
riage between him and Anne BuUen, and the crown with all 
dignities, honors, preeminences, prerogatives, authorities, and 
juriidlcSlions to the lame annext or belonging, is entaild after 
the king's death to the heirs of his body lawfiiUy begotten, 
Ti^. to the firll, fecond and other fons of the king and of the 
faid queen Anne^ and to the heirs of their bodies llicceffively, 
and for want of fuch iffue male, to the heirs male of the 
king, and the heirs of their feveral bodies ; and for want of 
Inch ifliie, to the lady Elii^ahetb, their daughter and the heirs 
of her body, and fo to their fecond, third and other daugh- 
ters, and for want of fuch iffue, to the king's right heirs. 

" If any by writing, printing, or exterior adl: malicioufly 
'' do or procure any thing to the peril of the king's perfon, 
" or to the dillurbance of the kind's enjoyment of the crown, 
" or to the prejudice or derogation of tlie marriage between 
" him and queen Anne, or to the peril, flander, or dilherifon 
of any of the iffues or heirs made by this aS: inheritable 
to the crown, it lliall be hi8;h treafon. 

If any by words without writing, ^c. malicioufly pub- 
" lifh any thing to the flander of the faid marriage between 
the king and queen Anne, or to the Dander or dilherifon of 
" the iffues of the king's body begotten on the faid queen 
Anne, or other heirs inheritable to the crown by virtue of 
this aft, it fliall be mifprilion of treafon:" an oath is ap- • 
pointed to be taken in purfuance hereof, and the refufers are 
guilty of mifprilion of treafon ; provilion is made for the cu- 
Itody of the heir of the crown during minority. 

28 H 8. cap. "J. The laft a£l is repeald, and all interme- 
diate offenfes againft that a£l: in relation to queen Anne or the 
lady Eliisiabeth pardoned ; queen Anne and others attainted of trea- 
fon ; the marriage between the king and queen Catharine annulled 
and judged void, and the iffues between tliem to be illegiti- 
mate ; the marriage between the king and queen Anne judged 
void by fentence of divorce of the archbilhop ; the fame fen- 
tence confirmed, and the marriage with queen Anne judged 
■and declared null and void, and the illues between them de- 
i' clared 



it 



HiJIoria Placitorum Coron£. 277 

clared illegitimate and excluded from inheriting the crown : 
LevLtical degrees fettled. Children between the king and 
queen Jane Ihali be adjudged the king's lawful children, and 
inheritable to the crown ; the crown entaild to king; Hen' 
ry Vlll. and the heirs of his body lawfully begotten, that is 
to fay, to the firft, fecond and other fons of the king on the 
body of queen Jane begotten, and the heirs of their bodies 
feverally ; and in default of fuch iftue male, then to the firll 
fon and heir male of his body, and fo to the fecond and other 
ions in tail, and for the want thereof, to the firlf and other 
ilTue female between the king; and queen Jane in tail, and 
for want of fach ifTue, to the king's firfl: and other ilTue fe- 
male in tail, and lor lack of iiTue of the king's body, to fuch 
perfon, and in fuch manner as he fliall appoint by his lall 
will or letters patent ; provihon againft difturbances of the 
heir of his body lo nominated under pain of treafon ; " And 
if any iliall by words, writing, printing or other exterior 
a£l direftly or indire61:ly do or procure malicioufly any 
thing to the peril of the perfon ot the king, his heirs or 
fucceflbrs having the royal eftate of the crown, or mali- 
cioufly or willingly by words, iffc. give occafion, whereby 
the king, his heirs or fucceiTors might be interrupted of 
the crown, or for the interruption, repeal or adnullation 
of this ao;, or the king's difpofal of the crown according 
to it, or to the llander, difturbance or derogation of the 
marriage between the king and queen Jane^ or any other 
lawful \\ife, which he fliall hereafter marry, or to the pe- 
ril, llander or dillierilon of any of the ifllies and heirs of 
" the king limited to be inheritable to the crown, or to whom 
" the king fliall by authority of this a£l difpofe it, or that 
" affirm, ^c. the marriage between the king and queen Ca- 
" tharine, or between the king and queen Jnne to be good, 
" or llander the fentences of divorce abovelaid, or publifli 
" their ifTues to be the king's lawful children, or fliall at- 
" tempt to deprive the king, the queen, or any made inhc'^ 
" ritable to the crown by this a£l, or to whom the king by 
" authority of this a6l fliall difpofe thereof, of their titles, 
" ftyles, n:{mes, degrees, or roval eftate or regal power, of 

4'B .« refufe 



(C 

ti 

CI 

ii 

<c 
a. 
u 
cc 
ii 
li 



=- m 

278 Hifloria Placitorum Coroucc. 



" refufe to take an oath to anfwer luch queftlons, as fhall 
" be objefted to them upon any claiife of this adl, or after 
" taking the oath do contemptuoufly refill e to an Aver fuch 
" interrogatories, as fhall be objeded concerning the liime, 
" or fliail refufe to take the oath injoined by this a61, they, 
*' their aiders, counfellers, maintainers and abetters Ihall be 
*' guilty of treafon, and forfeit all their lands, ^c. and v}X 
" lanfluary excluded. 

The form of the oath is fet down in the a6l, and power 
is given to the king by will to dilpofe of the cuftody of the 
king's ilTue within age. 

It is made treafon to difturb fuch difpofal, and alfo pox^'er 
is given to the king to difpofe or give by will, ^c. to any of his 
blood any title, ftyle, name, honors, tenements or hereditaments. 

Nof^, This aft doubted whether the attempting any thing 
in parliament againft the marriage of queen Anne might not 
bring them in danger of the adl of 2 5 H !?. and therefore 
took care both to repeal the a£l, and to difcharge and pardon 
what had been attempted againft it. 

The claiile enabling the king to difpofe of any hoiiors or 
lands to thofe of his blood by will was neceffary, for without 
fuch an enabling afl of parliament the king could not diipoic 
thereof by willj but only by letters -patents under the great 
feal, or for lands parcel of the duchy of Lancajler under the 
feal of the duchy. 

But it feems, that as to the difpofal of lands belonging to 
the crown or duchy by letters patents under thefe refpc6tiv^e 
feals, the king had power without this a6l, or the 3 5 H. 8, 
cap. 1. to difpofe thereof, and to bind his fucceffors. 

And this by reafon of the fpecial penning of thofe a£ls, 
which, as I think, did not entail the hmds^ that the king had 
in jure coronas or in jure ducatus Lancaflri^^ but only limits 
the fucceflion of the crown and of the dignities, honors, 
prerogatives, preeminences, authorities or jurifdiftions to the 
lame annext or belonging, which are but io many expreflions 
of the parts or incidents of the regal dignity, and not of 
the lands or poffeffions of the cro\\n, but thole refted in the 
crown in fee-limple, as they were before thole a6ls made, 

4 And 



Hifioria Placitoriim Corona. I'jp 

And hence it is, that in the leveral acls of 34 H. '/. 
€dp. 2 1. I E. 6, cap.?). 18 Eli^. cap. 1. 35 EU;^. cap. 3. 43 
Eii^. cap. I. for confirmation of letters patents, there is no 
claiiie to make them good, notwithftanding the entail cf 
the crown, for it was not needful ; but the lands granted 
by king Henry Ylll. EdrvardVl. queen Mary, queen Eliza- 
beth, ftand eftedtual without any fuch confirmation, and yet 
the entail of the crown by thefe a^ls continued till the 
death of queen EU'^abeth, at which time it was ipentj and 
king James iucceeded to the crown as the true heir there-' 
of, without the help of any entail or nomination by Hen- 
ry VIII. 

And yet after all this the whole fcheme Was altered by the 
ftatute of 3 5 H. 8. cap. i. for thereby after recital of the 
ftatute of 28 H. 8. and that the kin^ had ilTue by queen Jane 
prince EJrvard, and the king had fmce married the lady Ca- 
tharine ; It is enaded, " That if the king and prince Edivard, 
" die without heirs of either of their bodies, the crown Ihall 
" remain to the lady Mary and the heirs of her body under 
" fuch conditions, as Ifiall be limited by the king by his let- 
" ters patents, or his laft will, and for want of inch ilTue 
*' or upon breach of fuch conditions, to the lady Elizabeth 
" and the heirs of her bodv under lucli conditions, as lliall 
" be limited by the king by his lail will or letters patents; 
*' and in defiiik of fuch illlie, or upon breach of inch condi-- 
" tions, to inch perfons and for fuch eftates, as the king Ihall 
" limit by his \\'ill or letters patents. 

This adl repeals the former oath of 28 ff. 8. and diredls 
the form of a new oath to be taken for the extirpation of 
the pope's pretended lupremacy, and limits it to be taken by 
all that iue livery, have any office of the king's gift, -receive 
orders, take degrees, and by all perfons whom the king\i5^f. 
lliall appoint, and that it ihall be treafon in fuch, ^ho oMi- 
nately refuie to take the oath. 

It is alfo enacled, " I'hat if any perfon by words, writing, 
*' printing or exterior act maliciouily or willingly do or pro- 
*' cure any thing direilly or indirecllly for the repeal, annul- 
" lation or interruption of this adt, or any thing therein 

" contained, 



u 
ii 



z8o Hijtoria Placltoriim Corona. 

" contained, or of any thing that lliall be done by the king 
" in the limitation of the crown to be made as afbreiaid, or 
" to the peril, diilierifon or llander of any of the iffues and 
^* heirs of the king being hmited by this a£l to inherit and 
" to be inheritable to the crown, or to the diiheriion or in- 
terruption of any perfon, to whom the crown is by this 
a6l, or fhall be limited by the king as aforelaid, whereby 
they may be deftroyed or interrupted in body or title of 
" the inheritance of the crown, the fame fhall be high trea- 
" fon in the offenders, their maintainers, aiders, counfellors, 
" and abetters, faving to all perlons, other than the parties 
" attainted, their heirs and fiicceffors, all rights, i^c. in the 
'* lands of the perfons attaint. 

And note that notwithftanding the catition iifed in the a(3: 
of 28 H. 8. for the pardon of the attempting to repeal the 
adf of 2 ^ H 8. no fuch care was thought neceffiry here for 
the attempt or procurement to alter the law by a£l of parlia- 
ment, for as it could not be reftrained by a precedent a£l, fo 
neither was it concerned within the penalty. 

And thus much for thofe treafons, that related to the fitc- 
celllon of the crown, which I have put together notwithftand- 
ing many of them come after thofe other adls, which I fiiall 
hereafter mention. 

By the 28 H. 8. cap. 10. which was the great concluding 
afl againft the papal authority, the aflerting or maintaining 
of the papal authority is brought within the ftatute of pmrnu- 
rflre, and he, that obftinately refufeth the taking of the oath 
of abjuration thereby enabled, is fubjefted to the penalty of 
high treafon. 

By 28 if. 8. cap. 18. marrying any of the king's children 
or reputed children or his lifters, or aunts of the father's 
part, or the children of the king's brethren, or lifters with- 
out the king's licence under his great feal, or deflowering of 
any of them is enabled to be treafon. 

By j^ 1 H. 8. cap. 8. The king and council's proclamation 
concerning religion or other matters are to be obeyed un- 
der fuch penalties, as they lliall think requilite ; they, tliat 
difobey them and then go beyond fea comtemptuoufly to 
4 avoid 



Hijtoria Placitonim Corona, 28 1 

avoid anfwering fucli ofienfe, ftiaii be guilty of treafon, ^c. 
faving to every perfon, other than the offenders, their heirs 
and fucceffors, all riglit, ^c. 

By 32H. 8. cap.!'), the marriage between the king and 
lady Anne Cleve, which had been dilfolved by the fentence of 
the convocation, was confirmed by parliament with liberty 
for each party to marry eliewhere : if any by writing, print- 
ingr, or exterior a6l, word or deed, accept, take, judge, or 
believe the faid marriage to be good, or attempt any thing 
for the repeal or adnuUation of this afl, it ihall be high trea- 
fon in them, their aiders, couniellers, abetters or maintain- 
ers, faving the rights of all, other than the offenders their 
heirs and iucceffors ; and all perfons that have adled againft 
the faid marriage are pardoned. 

By 33 H. 8. cap. 1 1. Qiieen Catharine Hoxpard was attainted 
of high treafon, and all perfons that had a£l:ed againft her 
were pardoned : any woman, whom the king or his fuccelfors 
(liall intend to take to wife, thinking her a pure and clean 
maid, if ihe be not fo, and Ihall willingly couple herfelf in mar- 
riage to the king notwithftanding, without difcovering it to 
the king before marriage, fliall be guilty of high treafon ; 
and if any other know it and reveal it not, it Ihall be mif- 
prihon of treafon : the queen or prince's wife folliciting 
any perfon to have carnal knowledge of her, or any perfon 
loUiciting the queen or prince's wile to have carnal knowledge 
of her is treafon in them refpe£lively, their counfellers, aid- 
ers and abetters. 

By 3 5? H. 8. cap. 3. The king's ftyle (Henricus oElavus Dei 
gratia Anglia;, Franciai ^ Hibernix rex, fidei defenfor, isf in 
terra ecclefis Anglican^ i^ Hibernias fupremum caput) is united 
and annexed to the imperial crown of England ; and if any 
lliall imagine to deprive the king, queen, prince, or the heirs 
of the king's body, or any to whom the crown is or Ihall be 
limited, of any ot their titles, ftyles, names, degrees, royal 
eftate, or regal po\\Tr annext to the crown of England, it 
Ihall be high treaion, faving the right of all other than the 
offenders, their heirs and fuccelfors. 



4 G And 



z8l Hi/ioria Placitorum Corona. 

And thus far concerning the feveral treafons enabled in this 
king's time, all which are neverthelefs now abrogated and re- 
peald by i E. 6. and i Mar. as fliall be fhewn. 

II. There are feveral afts of parliament in this king's time, 
which concern trials of treafon, fome of which are in force 
at this day, and not repeald by any ftatute. 

By 26 R 8. cap. 6. The treafon concerning counterfeiting, 
waihing, clipping and minilhing of money current within this 
realm, as likewlfe other felonies committed in Wales or the 
marches thereof, may be heard and determined before juftices 
of gaol-delivery in the next EngUflj county ; but note, this ex- 
tends not to other treafons, nor at this day to clipping or 
minilTiing the coin, for the afts, that made them treafon at 
that time, ^7^. 3 H. 5. and 4 H. 7. ftand now repeald, and the 
ftatutes of 5 £//^. cap. 1 1 . for clipping, and 1 8 Eli'zj cap. i . for 
minHliing the coin, dire£l it to be tried by the courfe and or- 
der of the law; and fo it is alfo for counterfeiting of foreln 
coin by the ftatute of i Mar. yea, and as to counterfeiting the 
coin of this kingdom, or any other offenfe touching coin by 
the ftatute of i <y 2 P. <y M. cap. i i . the indiftment and trial 
is dlrefted to be according to the courfe of the common law ; 
fo that as to coin alfo the ftatute of 2 6 H. 8. is now out of doors. 

28 H. 8. cap. I 5. For trial ot treaion committed upon the 
high fea before the admiral, ^c. by commiftion under the 
great feal ; this ftatute as to trial of treafon upon the fea 
ftands unrepeald by i Mar. and whether as to treafons com- 
mitted in any rivers, or ports, or creeks within the bodies of 
counties it be not repeald by lisf 1 Rtf M. cap. 1 o. or by 
the ftatute of 5 5 H 8. cap. 2. for trial of forein treaions, is 
conliderable. 

By 3 2 H. 8. cap. 4. Treafons and mlfprllions of treafon 
committed in Wales or in other places where the king's writ 
doth not run, ihall be tried before fuch commillioners oi oyer 
and terminer, as the king ftiall appoint, as it committed in the 
lame counties, into which the comm.iilion is direfted. 

This is repeald by the ftatute of i <i> 2 P. 1^ M. cap. i o. 

cited to be io adjudged in H. i^Elii^.(m) Co.P.C. p. 24. be- 

1 caufe 

(w) Lord Zii>?2!ej's cafe. 



Hijioria Placitorum Cor once. 283 



caiife it is done within the realm, and fo may be tried in 
Wales. 

33 H 8. cap. 20. Concerning the proceeding touching the 
enquiry and trial of treaion committed by perions, that be- 
come lunatic after the treafon committed, without putting 
them to anfwer, and touching the execution of perfons at- 
tainted of treafon, and afterwards becoming lunatic, is re- 
peald by the ftatute oi \il^ z?.^ M. cap. i o. nlde Co. P. C. 
*. 4 isf 6. both as to the indictment and as to the trial ; but 
the forfeiture of perfons attainted of treafon, as to old trea- 
fons, ftands in force. 

' 3 3 H 8. cap. 23. Treafon or miifprifion of treafon or mur- 
der committed by a perfon examined before three of the 
council, and found by them guilty, or iufpe£led, may be en- 
quired of, heard ^nd determined before commiffioners of oyer 
and terminer in any county of England to be named by the 
king, by jurors of the county in fuch commiffion : challenge 
for lack of forty Ihillings freehold allowed, peremptory chal- 
lenge is oufted in treafon or mifprifion of treafon ; trial by 
peers is faved. 

This ftatute as to the indi£l:ment and trial of treafon in 
any forein county ftands repeald by i ^ z ?. ^ M. cap. i c. 
as was ruled by all the judges of England in Somervi lie's cafe, 
M. 26 Eli^. reported by juftice Clench, «. 17. (n) againft 
the opinion of Stamford^ PI. Cor. Lib. II. cap. 26. both as 
to the indi£lment and alfo as to the trial ; for Somerville was 
indifted in the county where the offenfe was, and by a com- 
milTion in Middlefex was tried by a jury of the county, where 
the offenfe was committed ; but as to murder it feems to 
ftand unrepeald and accordingly put in ure ; Cromptons ju- 
ftice. (0) 

3 5 H. 8. cap. 2. Treafons, mifprifions and concealments of 
treafons committed out of the realm ihall be heard and deter- 
mined by the court of king's bench, and tried by a jury of 
that county, where the court lits, or before commillioners 
and in fuch ihire, where the king Ihail appoint by his com- 
milfion, by good and lawful men of the fame ihire, as if 

committed 

(») This Is reported r Jmi. /. 1C4. io') f. zz. lord Grevil's cafe. 



284 Hiporia Placitorum Corona. 



committed in the fame fliire : trial of a nobleman by his 
peers is faved. 

Upon this ftatnte thefe points have been refolved ; 1 . That 
this 2.di is not repeald by .1 E.6. or 1 isf 2 P. i^ M. cap. 1 o. 
thus it was refolved in OrurKs cafe, Co. P. C. p. 2^. 2. It ex- 
tends to a treafon committed in Ireland, refolved in Sir John 
Perm a c:i(e (p), Co. P. C. p. 11, 3. It extends to a treafon 
committed in Ireland by a peer of Ireland, fo refolved in 22 
Car. I . in B. R. in Macguires cafe {q). 4. The commiffion in 
this a£l: mentiond may be ligned by the king's fign manual, 
or the warrant to the chancellor to iffue the commiilion may 
be ligned by the king's fign manual, and either of them is 
warranted by this ftatute, fo relolved H, 3 6 £//^. cited Co. Pla. 
Cor. p. II. in the cafe of Patrick Ocullen. 5. If an indictment 
be taken by virtue of this ftatute in the county of Middlefex, 
and then the bench is removed by adjournment into another 
county, if the prifoner pleads not guilty, it ihall be tried by 
a jury of that county, where the indi6lment is taken, becaule 
the words are, that it JImU be inquired, heard and determined 
by good and larvful men of the fame county, rvhere the /aid bench 
pjalljit. M. 3 5 <^ 36 £//^. B. R. in the cafe oi Irancis Dacres 
cited Co. PI. Cor. ^.34. but otherwife upon an indiflment upon 
the fl:atute of 5 Elisi. cap. i . for refuling the oath of fuprema- 
cy. Co. PI. Cor. ibidem, (r) 

III. As touching the third point of forfeitures by treafon 
I fliall fay little more, than what is faid before in the prece- 
ding chapter concerning the forfeiture of tenant in tail. 

Only it feems, that the law was taken upon the ftatutes of 
3 3 and 7^6 H. 8. before mentiond, that if an abbot or a bifhop 
were attainted of treafon, that by force of the general words 
o£ forfeiting all their lands, tenements and hereditaments they 
forfeit the lands of their church, tho they had them in autre 
droit. 

I . Becaufe in the favings 0^ thefe ftatutcs, yea and in all 

the new flatutes of treafon made in the time of Henry VIII. 

abovementiond the faving runs, faring to all perfons other than 

I the 

ip) StateT'r. Vol.l. f. i8t. (r) The cafe o'i FJ.mjwd Sionn^r BJ- 

(jf) State Tr. Vcl. I. /, 9^8, fhop of London. 



Hijloria P lac it or urn Coronae. 28^ 

the offenders J their heirs and jucceffors fuch right, &c. and the 
exception oi^ fuccejfors makes it probable, that they intended, 
when a fole corporation was attainted of treafon, he Ihoiild 
forfeit the lands of his church; 

2. Becaufe in the a6l of attainder of the archblihop of 
Canterbury i Mar. cap. 1 6, there is a fpeclal provlfo, that k 
lliould not extend to the lands which he had in right of his 
archbiihoprick ; but that theie lliould be faved, as if he had 
not been attainted. 

3. Becaufe by the a(9: of 5 i H 8. cap. i 3. it appears plainly, 
that the pofieilions of monafteries, where the abbots were 
attainted of treafon, came thereby to the crown, tho they are 
not annexed to the court of augmentations of. the king's re- 
venues. 

4. It is clearly admitted by the judges in the cafe of the 
bilhop of Durham, Dy.iZ^. that by force of the ftatute of 
26 H.?>. the lands of abbeys, ^c. came to the crown by the 
attainder of treafon of the abbots, i^c. and polfibly it was in 
delign at the time of the making of that ftatute. 

But it is true, that before that ftatute of 25 H 8. i. The 
lands, which a perfon had in right of his church, were not for- 
feited by attainder of treafon. 2. 1'hat altho the lands of a 
fole corporation, fuch as were an abbot, prior, billiop, might 
be forfeited by attainder by the fpecial penning of 26 and 3 3 
H. 8. yet the lands of an aggregate corporation, as dean and 
chapter, mayor and commonalty, were not forfeited by the 
treafon of the dean^ or mayor, by virtue of thofe ftatutes, 
for the right of the land was in the commonalty and chapi- 
ter, as well as in the dean or mayor, and not in them alone. 
3. That at this day the attainder of treafon doth not forfeit 
the lands of a biifiop, parion or other fole ecclefiaftical cor- 
poration : I . Becaufe the ftatutes of i £//;?:. (/j, and i 3 E//;^ 
cap. 10. {t\ disabling biihops^ mafters of hofpitals, ^c. to 
alien their pofleirions, difable them to forfeit as well as alien, 
or ocherwile the ftatute would be illufory. 2. By the fpecial 
penning of the ftatutes of i E. 6. cap. 12. and i Mar. whereby 

4 D it 

(/) This is not among (he printed (?) This ftatute made perpetual by 
ilatutts. 5 Car. i. caf. 4. 



lS6 Hijtoria PlacitoYiim Corona. 



k is enafled, that no penalties fliall be infii6led for treafon, 
other than fuch as be by 2 5' £. 3. 

• Concerning the forfeiture ot lands in a county palatine 
by the attainder of trealon out of a county palatine, ot 
e converfo. 

By the ftatutes of 9 H. 5. cap. 2. i2 H.6. cap. 13. 20 H. 6. 
cap. 2, 3 I H. 6. cap. 6. outlawries of treafon, iffc. in the 
county palatine of Lancaflcr were not to caufe a dilability of 
the perfon outlawed, nor induce any forfeiture of the lands 
or goods of the party outlawed lying out of that county ; 
but by the ftatute of 3 3 H 6. cap. 2. theie a£ls are repeald, 
and it is ordained, that the indifters in a county palatine 
(where the indi£lnient fuppoies any perfon to be inhabiting out 
of the county ofLancaJier within iome other county of the realm) 
have lands to the yearly value of five pounds in that county, 
and that upon indiilment to be taken out of the county pa- 
latine of perfons reiiding there, the indifters Ihall have a 
yearly freehold of five pounds, and that no procels be made 
out upon any luch indiflments, till it has been examined by 
the king's jullices, whether the indifters be fo qualified. 

But now bv the ftatute of 27 H. 8. cap. 24. all powers in 
county palatines for making of juftices in eyre, of alfife, of 
pieace, of gaol-delivery, are relumed, and inch commiilions 
are to pais under the great feal of England, only in Lancajler 
they are to be under the ulual feal of Lancaflcr : all proceffes 
to be in the king's name under the tefle of him, that hath 
tlie county palatine ; all indictments, ilfc. are to conclude con- 
tra paccm regis, and all fines and amerciaments upon officers 
'are refumedj fo that now all procefs of outlawry, attain- 
der, ^c. In county palatines are of the fame effedt and in- 
duce the fame foifeitures, as if the oflenfes were committed, 
tried and determined in any other county of England. 

But this alters not the title of the bilhop of Durham or any 

other, that had royal forfeitures of treaions of lands within 

their liberty, or county palatine, for that is a diftinil fran- 

chiie, and not at all touched by the a£l: of refumption, as 

' appears by the cafe in Dyer (it) before cited, and by what is faid 

2, in 

C«) 2)ycr 189. 



Hifforia Placitorum Corofice. 2S7 

1. 11 - -■-... . . - 

in the precedent chapter touching forfeitures by treafon : and 
thus far for acls touching treafon in the time of Henry VIII. 

As touching treafons in the verge I lliall particularly men- 
tion the fime hereafter. 

I come now to the time of king Edxpdrd VI. 

I E. 6. cap. I 2. There are thefe feveral changes plade by 
thefe feveral claufes. 

I. It is enafted, that no a6{:, deed or ofFenfe being bvfta- 
tute made treafon or petit treafon by words, writing, cypher- 
ing, deeds or otherwite whatfoever, Ihall be deemed or ad- 
judged high treafon or petit treafon, but only fuch as be trea^ 
fons or petit treafons in or by the ftatute of 25 E. 3. for de- 
claring treafon, and fuch oftenfes, as hereafter by this adl are 
expreifed and declared to be treaion or petit treaion ; and no 
other penalties to be inflifted upon the oft'enders in treafon or 
petit treafon, but wdiat are ordained by that, or this ftatute. 

2d claule repeals the ftatutes concerning heretics, Lo/- 
Urds^ the fix articles, felling of books of the icriptures, isfc. 
ordained in the time oi R.i. R 5. and H. 8. 

3d clauie repeals all felonies made by a6l of parliament, 
fince 23 April i H.2. that were not felonies before, and all 
penalties touching the fame. 

4th clauie repeals the a£l of 31 H, 8. touching obedience 
to the king's proclamations, and the ftatute of 34H. 8. im- 
pofing penalties upon the difobedient. 

5th claufe ena£ls certain new oftenfes, i;/:?:. " If any iliall 
" by preaching, exprefs words or layings aftirm and fet forth, 
" that the king, his heirs or fucceflors, kings of" this realm, 
" is not or ought not to be fupreme head on earth of the 
" church of England and Ireland immediately under God, or 
" that the bilKop of Rome, or any beiides the kingr for the 
" time beins;, ought by the laws of God to be lupreme head 
" of the iame churches, or that the king, his heirs or luc- 
" ceflbrs, kings of this realm., ought not to be king of Eng- 
" land, France and Ireland, or any of them, or do compafs 
" by open preaching, exprefs words or fayings to depofe or 
" deprive the king, his heirs or iucceffbrs kings of this realm, 
" from his royal eftate or titles to the fame kingdoms, or. 

" do 



188 Hiftorla Placitorum Coron£, 



" do openly plibliili, or iay by expreis words or iayings, that 
" any perion, other than the king, his heirs or ilircefTors 
" kin"S of this realm, of ri"ht oiiglit to be kino; of the reahns 
" aforef lid, or any of them, or to have or enjoy the fame or 
"' any of them, the offenders, their counlellers, aiders, abettors, 
" procui^rs and comforters, for the firft oftenie lliall lofe his 
" goods, and fuffer Imprifonment during the king's pleafure ; 
" and if after inch convi£lion he lliall commit the fame of- 
" fenfe again, other than fuch as be exprelfed in the llatute 
*' of 25 £. 3. he Ifiall forfeit to the king the profits of his 
" lands, benefices, and ecclefiaifical promotions during his 
*' life, and all his goods, and fuffer perpetual imprifonment ; 
" and for the third offenfe after a fecond convi6lion, he lliall 
*' be guilty of treafon, and fuffer and forfeit as a traitor. 

6th claufe enafts that, " If any perfon lliall by writing, 
*' printing, overt-a6l or deed, aflirm or fet forth, that the 
*' king of this realm for the time being. Is not or ought not 
*' to be fupreme head on earth of the churches of England 
*' and Ireland^ or any of them immediately under God, or 
*' that the bifliop of Rome or any perion, other than the 
" king of England for the time being, is or ought to be fu- 
" preme head on earth of the fame churches or any of them, 
" or do compafs or imagine by writing, printing, ov^ert-deed 
or a£l: to depoie or deprive the king, his heirs or fucceflors 
from their royal eitate or titles of king of England^ France 
and Ireland, or any of them, or by writing, printing, 
overt-a6l: or deed, do affirm, that any perfon, other than 
" the king, his heirs and fuccefTors, of right ought to hi. 
" king of the realms of England, France and Ireland, or any 
*' of them, then every fuch offender lliall be guilty of treafon, 
" and fufler and forfeit, as in cafe of high treafon. 

7 th claufe enaffs, " That this a£l lliall not extend to re- 
" peal any ftatutes touching the counterfeiting, clipping, fi- 
*' ling or walliing the coin current of this kingdom, or im-* 
porting counterfeit coin, or counterfeiting the king's fign 
manual, privy leal, or privy fignet, their abettors, ilfc. 
8th claufe cna£ls, " That if the perfons declared by the 
a£t of 3 5 H. <i. to. be inheritable to the crown do ulurp 
3 " one 






ti 



Hijioria Placitorum Corona, 289 

** one upon the other, or interrupt the king's poffeflion of 
" the crown, they, their abettors, isfc. fhail be traitors; 

9th claufe takes away clergy from perfons found guilty 
by verdiil, confeffion, or not diretlly anfwering, or ftanding 
mute in cafes of murder of malice prepenfe, of wilful poi^ 
foning, houfe-breaking, any perfon being in the houfe and put 
in fear, robbing in or near the highway, horfe-ftealing, fa- 
crilege ; but in all other cafes of felony clergy allowed, and 
faniiuary the fame as before the 24 April i H. 2. 

1 0th claufe provides, that all the ftatutes of H. 8. concern- 
ing challenge, or concerning trial of forein pleas, fliali Hand 
in force. 

1 1 th claufe declares, that no perfon already arretted or 
imprifoned, indi£led or convifted, or outlawed for treafon^ 
petty treaton or mifpriHon of treafon, Ihall have any advan- 
tage of this a£l:. 

I 2th claufe provides, that wilful killing by polfon lliall 
be deemed wilful murder, and the offenders, their aiders, a- 
bettors, counfellers or procurers lliall fufFer, as murderers. 

I 3 th claufe ena<9:s, that a lord of parliament in all cafes 
within the benefit of clergy, tho he cannot read, yet Ihall 
be dellverd as a clerk convi£l: without burning in the hand, 
or lofs of lands, i^c. 

1 4th claufe faves the trial by peers for any offenfes within 
this Itatute. 

I 5 th claufe ena£ls, that clergy be allowed, notwithftand- 
ing the offender have been married to a lingle woman or wi- 
dow, or to two wives or more. 

1 5th claufe ena^ls, that notwithftanding attainder of trea- 
fon, petit treafon, mifpriiion of treafon, murder or felony, 
the wife ITiall have her dower, and faves to all and every 
perfon, other than to the offender attainted, convi6l or out- 
lawed, all fuch right, title, intereft, entry, leafes, pofTeflion, 
condition, profit, commodity, and hereditaments, as they had 
before or at the time of the attainder, conviilion, or outlawry. 
1 7th claufe provides, that the. ilatute of 27 F. 8. for fe- 
lony in fervants ilealing the goods of their matters, fhall ftand 
in force. 

4E i8th 



zpo Hijloria Placitorum Corona. 

1 8 th claiife provides, that no perfon be put to anfwer for 
any of the oFrenfes abovefaid concerning treafon by preaching 
or words only, unlefs accufed before one of the king's coun- 
cil, juftlce of affife or peace, ^c. within thirty days after 
the oftenfe committed. 

1 9th claufe, concealing and keeping fecret any high treafon 
fhall be milpriiion of treafon, and the offender fhall forfeit 
as heretofore hath been ufed in cafe of milpriiion of treafon. 

20th claufe, calling, writing or printing the French king 
king of France Ihall not be adjudged any offenie within this 

aa. 

21ft claufe provides, that no perfon iTiall be indicted, ar- 
raigned, condemned or convi6fed for any offenfe of treafon, 
petit treafon, mifprifion of treafon, or for any words before 
mentiond, whereby he fhall fuffer pains of death, lofs of 
goods, imprifonment, ^c. unlefs the offender be accufed by 
two iufficient and lawful witneifes, or ihali willingly without 
violence confefs the fame. 

I have mentiond the claufes of this ftatute at large, and 
by their numbers, becaufe there be many things obiervable 
thereupon. 

By the firft claufe of this ftatute all thofe numerous trea- 
fons and petit treafons, that were enabled or declared at any 
time hnce 2 5 £. 3 . are wholly taken away, except that of 
counterfeiting, clipping, walhing, or filing of coin, ^c. ex- 
cepted in the 7 th claule ; but this doth not m.ention mifpri- 
fions of treafon, but only declares what mifprifion of treafon 
is, for by taking away the treafons themfelves, the mifpri- 
fions of thofe treafons muft needs ceafe, as a crime. 

But this a£l did not extend to alter the trials in cafe of 
trealon, and therefore notwithftanding this acf the ifatute of 
28 H. 8. cap. I 5. for treafons at fea, 16 H. 8. cap. 6. for coun- 
terfeiting, ilfc. in Wales, 3 2 H. 8. cap. 4. for treafons in Wales, 
3 :; H 8. cap. 23. for trealons to be tried out of their county, 
3 5 f/. 8. cap. 2. for trial of forein treafons, ffood yet in their 
force, until the ffatute of 1 <^ 2 P. (^ M. cap. i c. 

Again, notwithftanding that by fome former ftatutes cer- 
tain offenfes, which were felony before, as v^'ilful burning of 
I - ■ houics 



Hi ft or i a Placitorum Cor once. 291 

hollies and poifoninj^, were made treafon, yet the repeal of 
thofe atls that made them treafon leaves them neverthelefs 
in the ftate, wherein they before were, namely felony. 

Again, upon conlideration and comparifon of the 5 th and 
6th dailies thefe things are obfervable, namely, i. The wif- 
dom of the law-makers, that put the very fame offenfes in 
words fpoken in a lower rank of piiniiliment than the fame 
things written or printed, m.aking the former but a mlfde- 
meanor in the firft oftenle, which in printing or writing was 
treaion in the firll ofFenfe. 2. It is obfervable upon that 
fifth claule, that there were fome things within the fifth claufe, 
that might be treaion or an overt-a£l of treafon within the 
ftatute of 2 ^ E. 3. {other than fuch as be exprelTed in the fta- 
tute of 2 5 £. 3.) vide qu£ fupra diSlaJmt cap. i 3. touching the 
treafon in compalling the king's death. 

It is alfo obfervable upon the i i th claufe, that when an 
cflenfe is made treafon or felony by an a61: of parliament, 
and then thole afts are repeald, the offenfes committed before 
fiich repeal and the proceedings thereupon are dilcharged by 
fuch repeal, and cannot be proceeded upon after fuch repeal, 
unlefs a fpecial ckufe in the zOi of repeal be made enabling 
fuch proceeding after the repeal for offenfes committed before 
the repeal, as there is in this cafe. 

3 ^ ^Ed.6. cap. *). Tho it primarily concerns riots, yet 
coniequently it concerns treafon alfo : thereby it is ena£led, 

I . " That if any perfons to the number of twelve or more 
" affembled together Ihall intend, go about, pr:i£liie or put 
" in lire with force of arms unlawfully, and of their own 
" authority to kill, take or imprifon any of the king's privy 
" council, or unlawfully to alter or change any laws efta- 
" blillied by parliament for religion, or any other laws or 
" ftatutes of this realm, and being commanded by the Ihe- 
rift, jultlce of peace, m.ayor, i^c. by proclamation in the 
king's nair.e to repair to their houfes, if they Ihall conti- 
nue together by the fpace of one whole hour after inch 
*' proclamation, or after that Ihall willingly in forcible and 
" riotous manner attempt to do or put in ure any of the 
" things aforelaid; this ihall be adjudged treafon in all the of- 



Ci 



u 



" fenders. 



292 Hiftoria Placitorum Coronae. 



a 

a 
u 

(C 



" fenders, their aiders, abettors and procurers." See before 
in chapter XIV. concerning levying of war, how much of this 
high treafon is within the ftatute of 25 E. 3. 

2. " That if any perfons to the nmnber of twelve or 
" more fhall intend, go about, praftife or put in ure in man-* 
" ner aforefaid to overthrow, cut, break or dig up pales, hedges, 
ditches or other inclofure of any park, inclofed grounds, 
banks of pools or filli-ponds, conduits, conduit-heads or 
pipes to the fame, which may remain open, or unlawfully 
to have common or way in the faid park or grounds, or 
" to deftroy the deer, warrens of conies, dove-houfes, fiih, 
" or to pull down houfes, mills, bays or barns, or to burn 
" ftacks of corn or grain, or to diminilli the rents or yearly 
values of any manors, lands, ^c. or the price of any vic- 
tuals, corn or grain, or any other thing uiual for the fufte- 
nance of maUj and being required, as before, IhaJl not 
depart, but continue an whole hour, or Ihall after that 
forcibly attempt to do or put in ure the things aforefaid, 
they iliall be adjudged felons without benefit of clergy. 
Fide fupra cap. 1 4. which of theie oftenles were a le\ ying 
of war againft the king. 

5. " That if any perfon unlawfully and without autho- 
" rity by ringing of bells, founding of drums, trumpet, 
" horn, or other inftrument, by firing of beacons, by mali- 
" cious uttering of words, calling of bills or writings, or by 
" any ail whatfoever raife or caufe to be alTembled any per- 
" fons to the number of twelve, or above, to the intent that 
*' they iTiall do any of the ads aforefaid, who ihall not dif- 
" folve their aflembly upon fuch proclamation within an 
" hour, or fhall commit any of the iaid ads, then they, that 
" raife fuch affemblies, fhall fuffer as felons. 

4. If fuch affemblies to the number of forty, and above, 
fhall continue together two hours, or ihall bring weapons, meat, 
iffc. to the perfons fo affembled, it ihall be high treafon. 

5. If above the number of two and under twelve attempt 
fuch things, iyc. as abovefaid, they are to fufFer imprifon- 
ment for a year, and make fine and ranfom, with treble da- 
mages to perfons damnified. 

1 6. In 



Hiftoria Placitorum Corojia, 293 

6. In the cafes of treafon within this a£l: tenant in tail is 
to forfeit to the king during LTe only, and tenant in fee-lim- 
ple to forfeit only as upon attainder of felony. 

7. Power is given to the llierifts, juilices, mayor, ^c. to 
raife power, and array them in manner of war againft the 
rioters, to the intent to apprehend the rioters ; and if the 
faid rioters do not depart upon proclamation but continue to- 
gether, it fiiall be lawful for the llierifF, iffc. after fuch com- 
mands to kill the rioters ; if after fuch commandment it for- 
tune any of the rioters be killed upon fuch account, the fhe- 
rifF, ^c. or any alTembled by him fliall thereof be difcharged : 
then follows the puniiliment of thofe, who refufe to alliil: 
the iheriff, or juftice in the repreilion of riots. 

Movers to fuch riots are guilty of felony without clergy, 
and perfons foUIcIted thereunto not revealing it to fuffer 
three months impriionment. 

This aft being made in a great meafure for the fupport of 
the reformed religion under Edward VI. was as to all points 
of treafon therein contained repeald by i Mar. cap. i . but in 
efteft the very fame offenfes were enabled felonies within 
clergy by i Mar. felf. z. cap. i 2. which was to continue to the 
end of the next parliament, and after the death of queen 
Marjf was re-ena£led by i Eli^. cap. 1 6. to continue during her 
life, and till the end of the next feffion after her death, but 
then expired. 

That which I would obferve upon this aft is this, how 
careful they were in this time not to be over-hally in intro- 
ducing conlfruftlve treafons, and to fliew how the opinions 
of the parliaments of Edrvard VI. queen Mary^ queen £//^^- 
beth went, as to the point of conftruftlve treafon, and how 
careful they were not to go far In extending the ftatute of 2 5 
E. 3. beyond the letter thereof. 

As to the point of indemnifying thofe, that killed the 
rioters in affiftance of the Iherlff, it is true, that the killlnH 
of rioters barely for continuing together after proclamation 
required a new law to indemnify it, as in the ftatute is pro- 
vided ; but If rioters refill: the fherltf In his endeavour to ap- 
prehend them, or make head againft him, or continue to put 

4 F in 



(C 

<c 

li 

<(. 

(C 

ii 



294 Hifloria Placitorum Corona. 

in lire their riotous a£l:ing, as pulling down houfes, inclo- 
fures, ^c. if the llierifF, or thofe that come in aid of him, 
kill any of ihem, the law and the ftatute of 2 H 5. cap. 8. 
do indemnify them, as fhall be hereafter more fully declared. 
By 5 ^ 6 £. 5. cap. 11. "If any perfon by open preach- 
ing, exprefs words or fayings do exprelly, dire£l:ly and ad- 
vifedly let forth and affirm, that the king, that now is, is 
an heretic, fchifmatic, tyrant, infidel, or ufurper of the 
crown, or that any his heirs or fuccefTors, to whom the 
crown is to come by the ftatute of 3 5 H. 8. being in law- 
ful pofTeffion of the crown, is an heretic, fchifmatic, tyrant, 
infidel, or ufurper of the crown, then fuch perfon, his 
aiders, abettors, procurers, counfellors, and comforters 
knowing the fame, fliall for the firft oftcnfe lofe their goods 
" and be imprifoned at the king's will, for the fecond offenfe 
*' after conviftion for the firft lofe the profits of their lands 
" and eccleliaftical benefices during their lives, and be perpe- 
tually imprifoned, and for the third offenfe after the fe- 
cond convi£lion be adjudged traitors, and lofe their lives, 
and forfeit as In cafe of high treafon. 

If any perfon fhall by writing, printing, painting, car- 
ving or graving, direftly, exprefly and advlfedly publiffi, 
" fet forth and affirm, that the king, or any his heirs or 
fuccefTors, iffc. is an heritic, fchifmatic, tyrant, infidel, 
" or ufurper, it fliall be high treafon, and he fhall forfeit as 
" In cafe of high treafon. 

If any perfon or perfons rebellioufly detain the king's 
caftles, or fortreffes, fliips, ordinance, artillery, or fortifi- 
cations, and do not render them up to the king, his heirs 
" or fuccefTors within fix days after proclamation under the 
" great feal, it ffiall be treafon, and the offender, his alders, 
" ^c. knowing of the fald offenfes ffiall fuffer and forfeit as 
*' In cafe of high treafon. 

" If any the king's fubje6ls commit treafon contrary to this 
" acl or any other a6l: In force out of the realm, it fhall be in- 
" quired and prefented by twelve m.en of any county, which 
" the king by commlffion fhall affign, as if committed Vv'ith in 
*' the realm, and the like procefs thereupon, as if done within 
I "the 



ii 

u 

iC 

u 

CI 



ii 
a 



a 



(C 



Hifloria Placitorum Corona. 2.<)% 

" the realm, and the outlawry againft an offender inhabiting^ 
'' out of the realm Ihall be as elfe£lual as if he had been re-" 
" fident within the reahn. 

" But if he render himfelf upon the outlawry within a 
year, he fhall be received to traverfe the indi£l:ment. {x) 
" Perfons attainted of any treafon ihall forfeit to the king 
all their lands of any eftate of inheritance in their own right 
at the time of the treafon committed, or at any time after. 
*' No proceeding fhall be on any the ofFenfes aforefaid 
" committed only by preaching or words, unlefs the offender 
" be accufed thereof within three months before one of the 
*' king's council, juftice of affife, juftice of peace being of the 
" quorum, or two juftices of peace in the ihire, where the 
" offenfe is committed : concealment of any high treafon 
" Ihall be adjudged only mifprifion of treafon, and the offen* 
" der to forfeit as in mifpriiion of treafon. 

Provided that no perfon ihall be indifled, arraigned, 
condemned, convi£led or attainted for any of the treafons 
" or oftenies aforefaid, or for any other treafons, that now 
" be, or hereafter ihall be, which ihall be hereafter perpe* 
" trated, committed, or done, unlefs the fame offender or 
" offenders be thereof accufed by two lawful accufers, which 
" faid accufers at the time of the arraignment of the party 
" accufed, if they be living, fhall be brought in perfon be- 
" fore the party fo accufed, and avow and maintain that, 
which they have to fay againft the faid party to prove him 
guilty of the trealons or offenfes contained in the bill of 
indidfment laid againft the party arraigned, unlefs the party 
" arraigned ihall willingly without violence confefs the fame : 
*' a faving of the right of all, other than the offenders and 
" their heirs, or fuch as claim to their or any of their life ; 
" the wife of the party attainted of thefe or any other trea- 

" fons 

(x) This claufe remains, as our author ^rwflrovg^ plea ought to have been 

obferves below, unrepeald to this d.'.y, admitted according to the ftatute of 5 £5? 

fo that it was great injuftlce to deny the 6 F. 6. fee Staie 'Tr. Vol. III. /. Spd. 

benefit of a trial within the year to and accordingly the like plea was allowed 

Sir T'homa% Armfirovg, who was out- to jfohufoi?, who was indifted for coun- 

lawed, while he was beyond fea, r^6 fciting the coin, Mich. 1 Geo 2. S. R. 

Car. 1. and of this opinion was the houfc ahho he had broke prifon, and was rc- 

*if commons by their vote Nov. 19. lO'Sy. taken in Evglatiii. 






V. 



hen it was refjlvcd, that Sir '/"tomas 



1^6 Hijtoria Placitorum Corona. 

" fons fliall be barred of dower of the lands of the party 
" attainted, fo long as the attainder ftand in force. 

Upon this ftatute many things are obfervable, i . That it 
fliould feem, that neither the writing of thefe fcandalous 
words, nor the bare detaining of the king's forts or fhips 
Were treafon within the ftatute of 25 £. 3. for if they had 
been fuch, this aft would not have been made. 2. The/^- 
cond thing obfervable is the great difcrimination, which in 
this ail: is made between words and writing, the latter being 
made treafon, the former only mifdemeanor in the two firft 
ofFenfes, altho the words be the fame in both. 3. That fo 
much of this aft, as is introduftive of new treafon, is repcald 
bv the ftatute of i Mar. cap. i . but whether thofe two penal- 
ties previous to treafon in cafe of words, 7;/:^. for the firft and 
fecond offenfe, be repeald by any Itatute, feems doubtful, for 
thofe are not treafon. 4. But thofe claufes in this ftatute, 
that concern trial of forein treafons, concerning outlawry of 
perfons beyond the fea, forfeiture of lands of inheritance of 
the party attainted, lofs of dower by the wife of the party 
attainted, ftand unrepeald to this day ; and fo it is held by 
many, that the claufe concerning two accufers ftands ftill on 
foot ; de quo vide pofiea. 

Touching the claufe for the forfeiture of the lands of the 
party attainted there are thefe things confiderable. 

1. That by this claufe tenant in tail of the gift of the 
king doth by his attainder forfeit his eftate-tail, notwith- 
ftanding the ftatute of 34 H. 8. cap. 20. for as that ftatute co- 
ming after 16 iff 3 3 H. 8. did as to that cafe repeal fo much 
of thofe afts ; fo this ftatute of $ tf 6 E. 6. coming after 3 4 
H. 8. doth repeal that ftatute, as to the cafe of attainder of 
treafon of fuch donee in tail. 

2. That this aft varies much from the penning of the afts 
of 26 and 33 H. 8. for they feemed, as hath been obferved, 
to faften upon lands in right of a corporation fole, as bilhop, 
abbot, isfc. but this limits it only to lands in their own right, 
which poflibly, tho an afiirmative claufe, may correft the 
extent of the ftatutes of 26 and 33 H 8. and bind up the 
forfeiture to lands only in their own right. 

I As 



Hijioria Placitorum Corona. 297 

As to the point concerning the two lawful acciilers thefe 
things will be confiderable, i. Whether it extend in law to 
new treafons made after this a61:. 2. Whether by any fta- 
tiite this be repeald. 3. Admitting it be not, what Ihall be 
faid two lawful accufers. 4. What a confeilion. 

I. The ftatute of 5 i?* 6 E. 6'. above^mentiond appoints two 
lawful accufers in cafe of all treafon enabled or to be enafled ; 
therefore if a new treafon were made by a fubfequent a£l of 
parliament without any claufe, that dire6ls the indi£lment or 
trial in any other manner than is appointed by 'y ^ 6E.6. 
by the words of this a£l: there muft be two lawful accufers, 
both upon the trial and indictment. 

But there have been great opinions, that tho the words of 
5 ^ 6 E. 6. extend to treafons, that fhall be hereafter ena£l- 
ed, yet this claufe doth not extend in law to fuch new trea- 
fons, unlefs fpecial provifion be made for the fame in the 
a£l: making fuck new treafon : others have been of a contrary- 
opinion, becaufe it only concerns the manner of proceeding, 
which may be direCled by a precedent aft, as upon the fta- 
tute of 1 8 Elizc cap. 5. 21 Jac. cap. 4* 

II. But certainly, if there be by a fubfequent ftatute any 
derogatory claitfe from this ftatute, then there need not be 
two lawful accufers. 

Therefore upon the ftatute of i ^ 2 P. ^ M. c^. 1 1 . in 
treafon for counterfeiting the coin current here, or for clip- 
ping and impairing of coin (which was then conceived a trea- 
fon not repeald by i Mar. cap. i.) the evidence and courfe of 
proceeding at common law both upon the indiftment and 
trial are reftored, and fo no neceffity of two witnelTesj this 
is agreed on all hands. Co. PI. Cor. p. i$- 

Again, tho the treafon for clipping or wafhing of coin de- 
clared by 3 H, 5. cap. 6. were repeald by the ftatute of i Mar, 
cap. I . as is declared by the preamble of the If atutes of 5 £//j^. 
cap. 1 I . and 1 8 E//^. cap. i . and that the fame is newly made 
treafon by the ftatutes of 5 and 1 8 Elif^. and confequently, 
were there no more in the cafe, two witneffes might be re- 
quifite by the words of the a6f of 5 ^ 6 Ed. 6. becaufe thofe 
are newly made treafons, yet by the penning of thofe fta- 

4 G tutes 



zpS Hijioria Placitoriim Corona. 

tutcs of ") and 1 8 Eli-^. it is not necellLliry, becaufe the words 
in both ftatutes are being lawfully convicted or attainted accord-' 
ing to the order dnd cotirje of the larv^ which takes in the whole 
proceedinc^, as weJl indictment as trial ; for the coiirfe of law 
therein mentiond feems to be intended the common law, and 
at common law there was no neceihty of two witneiTes in 
any cafe of treafon. 

And altho the ftatute o£ i i:f z P. ^ M. cap. 1 1 . did take 
clipping and walhing to be continuing treafons, and therein 
might raiftake, yet there being an exprefs claufe in that fta- 
tute, that in thofe cafes the evidences at common law fhoiild 
be reftored ; this direftion might take off the ftatutes of i and 
5 £. 6. as to the two witneffes in thofe cafes, and fo have 
an influence upon the ftatutes of 5 and 18 Eli\. or at leaft 
may go far in expounding them to reftore the evidence re- 
quired at common law in thofe cafes. 

* But whether as to all other treafons the general claufe in the 
ftatute oi I tf 1 P.^ M. cap i o. that all trials hereafter to be 
awarded or made for any treafon JJjall be had and ufed only ac- 
cording to the due 0? der and courfe of the common laws of this 
realm and not otherwife, have taken away the neceftity of two 
witneftes upon the indiftment, hath been controverted {y\ 
for on all hands it is agreed, that it takes away the neceffity 
of two wltneffes upon the trial, if there were no more in 
the cafe. 

My lord Coke in Pla. Cor. p. 25, 26. delivers his opinion, 
that two witneffes are neceffary upon the indi£lment in cafe 
of all treafons, other than thofe, that are for counterfeiting, 
clipping, or impairing the coin, and gives many weighty reafons 
for it, and cites a refolution in 1 4 Eli^. lord Lumley^ cafe, and 
4 Mar. Bro. Corone, 2 1 9. for according to him the indi£l- 
ment is a diftinil thing from the trial ; therefore the ftatute 
oi I ^ 1 P. ilf M. cap. 1 o. extending only to the trial doth 
not take away the neceffity of two witnefles upon the indi6l- 
ment, and accordingly the general opinion hath run thus 
fince. (^) 

3 But 

iy) See Kel. 9, 18, 49, of Shaft sUiry's cafe ; f. (^4?. lord Rvf- 

{z) State Tr. Vol. III. f. jff. the cafe feVs, cafej /. 733. colonel Sidney'% cafe. 
of lord Cajllemain, Il/jd. p. 415. earl 



Hijloria Placitorum Coronce, 299 

But yet much is to be alleged, that the ftatute of i <y 2 
P. ^ M. cap. I o. extends as well to reduce the india:ment, as 
the trial, to the courfe of the common law. 

1 . Becaufe it feems to be the intent of the ftatute to in- 
volve the indiftment under the general appellation of the 
trial, according to 2 <^ 3 P. ^ M. Dy. 132. a. and tho it is 
true, that P. i Mar. Dy. 99, 100. in Thomas's cafe there were 
two accitfers required, yet that was before the ftatute of 
I ^ zR^ M. cap. 10. 

2. Becaufe this ftatute of i ^ 2 P. <^M. cap. 10. in other 
cafes extends as well to the indi6lment, as the trial; it is a- 
greed, that the ftatute of 3 3 H 8. cap. 23. concerning trial 
of treafon in a forein county, is wholly repeald by i <^ 2 P. 

. ^ M. cap. I o. (ptod vide Co. P.C.p.zf. JDy. 132. whereas, if it 
fliould only refer to the trial, the indictment might ftill be in 
a forein county, and fo he might be indiCled in a forein 
county, and yet muft be tried in the proper county : vide 
accordingly relolved H. 12 Eli^. Dy. z%6.b. touching the re- 
bels in the Norths where Stamford's opinion, Lib. II. cap. z6.(a) 
is denied by all the judges of both benches ; again, the ftatute 
of 33 H. 8. cap. 20. touching the indi£lment and trial of lu* 
natics in any county the king fliall appoint, is repeald by this 
aiS: of I ly 2 P. ^ Af . cap. i o. as well to the indiftment as the 
trial : vide Anderf. Rep. w. i 54. Ardens cafe, (b) 

3 . The indictment is in common fpeech a part of the tri* 
al, or at leaft a neceflary incident to it ; and if it ihould be 
neceftary to have two witnefles to the Indi£l:ment, it would 
confequently be neceffary to have them upon the trial alfo ; 
for by the ftatute of 5 "^^ 5 E. 6. cap. 1 1 . the two witneffes, 
that are upon the indiClment, muft avow their teftimony in 
the prefence of the party upon his arraignment : and it feems 
incongruous, that a greater evidence Ihould be required to the 
indictment, which is only an accufation, than to the trial (c), 
where the party is to be conviCted ; therefore, if the ftatute of 
I isf z P.& M. intended to take it away upon the trial, it 

cannot 

(a) S. 'P. C. p. 90. the time of the indiftmenf, becaufe that 

{b) t And. 105. Is the foundation of all the reft, and is 

(c) Lord Coke 'P. C. ^.15. fays the commonly found in the abfcnce of tb© 

greateft proof is moft of all neceflary at party accufed. 



<c 
cc 



300 Hiftoria Placitorum Coroucc. 

cannot be fiippofed to continue the neceility of two witnef- 
les upon the indidlmenti 

4. There is alio a great authority for this opinion : vide 
the refolution and reaion of the judges in Jrdcns cafe, An- 
derj. Rep. n.i$4. (d\ where they refolved, that they could not 
be indi£led in a forein coimty upon the ftatute of 5 5 H 8. 
cap. 23. becaufe the llatute of i ^ z P.i^ M. cap. 10. refto- 
teth the common law as well in relation to the indi6lment 
as the trial, and the trial includes the indi£lment ; and this 
was by all the juftices and barons fo refolved, which cafe is 
alio reported by juftice Clench y ». 17. to be i^Novem. 26 Eli^!^. 
A-gain ibidem w. 28. " Fuit tenus per les juftices, que ou le fta- 
tute de E. 6. eft, que inditement de trefon fera per 2 teftes, 
& le ftatute de reine Mary eft, que trefons fey try folonc 
le common ley, que ore inditements fey folonc le common 
ley, car inditement eft parcel de tryal, car nul tryal poet 
eftre fans inditement, & lie fuit in Somerville's & Ardens 

*' cafe. 

5. It hath been the care of the parliaments lince in their 
a£ls to make proviiion for two witnelfes in cafes of treafons 
newly made, -vide ftatutes i 3 E//;^. cap. i. 13 Car. 2. cap. i. fo 
that it was thought, that the ftatute of 5 ^ 6E.6. was not 
of force as to the two witnefTes, at leaft as to treafons newly 
enabled, otherwife in cafes of new treafons they needed not 
theie proviiions. (e) 

And thus the reafons ftand on both fides, and tho thefe 
feem to be ftronger, than the former, yet in a cafe of this 
moment it is fafeft to hold that in pra£lice, which hath leaft 
doubt and danger ; quod duhitas, ni feceris, efpecially in cafes 
of life (/) ; but upon mifprifton of treafon two witnefles are 
requilite both upon the indi£lment and trial. Co.Pla.Cor. p. 14. 
3 2. The 

(d) I And. 107. " no perfon niall be indliSled, tried or 

(e) If it were only queftlonable, that " attainted, but upon the oaths of two 
was reafon fuflkient for making fuch pro- " lawful witnefles to the fame treafon ; 
vifion. Vide fiipra p.i6\. " but out of this afi are excepted all 

{J ) However fince our author wrote " proceedings in parliament, or proceed- 

this matter is in great meafure fettled " Ings for counterfeiting the king's coin, 

by 7 W. 5. cap. 5. whereby it is enabled, " great feal, privy feal, or ligncc or fign 

" That in call cafes of high treafon, " manual. 
*' whereby any corruption of blood, ST'c. 



Hifioria P!acitoru?n Corona. 30 1 

III. The third thing confiderable hi this claufe is, what 
fliall be laid trvo lawful accujcrs within this ftatute, if it bs 
of force. 

As to the acciifers mentiond in the ftatiite of 5 "Ji^ 6 £. ^. 
cap. 1 1 . they are no other than the two lawful and fufficient 
witnefles mentiond in the ftatute of i £. 6. cap. 12. in fine-, 
this is agreed by my lord Coke, Pi. Cor. p. 2^. 

Now what are lawful witnelTes in this cafe is conliderable ; 
the lawfulnefs of witnefles miilf refpect either, i. The per-^ 
fons, or eUe, 2. The teftimony of the witnefles. 

1 . As in relation to the perions of witnelTes, thofe are faid 
lawful witnefies, which by the laws of England are allowed to 
he witnelTes. 

A feme coven is not a lawful witnefs againft her hiiiband (^) 
in cafe of treafon, yet in lord Cafilehavcns cafe (h) upon an 
Indiftment for a rape upon his lady by another by her huf-^ 
band's prefent force, llie was received as a witnels by the ad-^ 
vice of the judges, that aflifted at that trial, and upon her 
evidence he was convi£led and executed. 

But a woman is not bound to be IvVorn or to give evi- 
dence againft another in cafe of theft, ^c. if her hufband 
be concerned, tho it be material againif another, and not di- 
rectly againrt her hufband. Dalt. cap. i 1 1 . (/) 

Upon an indiClment upon the flatute of 3 ff. 7. cap. 2. for 
taking away forceably and marrying a woman, the woman fa 
married may be fworn againft her hufband, that lb marries 
her, if the force were continuing upon her till the marriage j 
and thus it was done in the cafe of the lady Fultvood, M. i 5 
Car. I . B.R. Croke (k\ and accordingly feriatim relolved by alt 
the judges of the king's bench lately in the cafe of Brown, Trin* 
2 5 Car. 2. (/) for thefe reafons: i. Becaufe otherwife the Ifa- 
tute would be vain and uleleis, for pollibly all that were prefent 
were of the offender's confederacy. 2. The marriage, tho a mar* 
rir-ge defaclo, yet, if it were efiefted by a continued a6l of force, 

4 H was 

(,^) Co. Lit. 6. 1. lilic was done in the cafe of Ha^.gen 

(b) Hiif.iiy Riijh. Co!lc5f. Vcl.ll. Siven^Cea, Mich, i J/jn. S. R. Stare l/r. 

/. 9 -, -J- ! o I . Stgte •I'r. Fol: \. p.i<i6. Te/. V- />. 4 5 3 • 

(/) N.L^^it. dp. i6a- P- 5+'3. (0 I t^'cii. 24;. 3 Kel>. i5>3. 

(k) Cro. Car. 4S;, 4S4, 4'5S, 49'- the 



302, Hijloria Placitomm Corona. 

Was not a marriage de jure, for it was diflblvible by divorce, 
iinlefs ratified by a fiibfequent tree cohabitation or conienr. 
But 3dly and principally, becaufe it ys^3S flagrante cr inline, for 
the child was taken away upon the Tlmrjday, married the Fri^ 
day, and feized by the guardian the next day, before they 
had lain together, and the force was all that while continuiiis^ 
upon her. 4. There were other witneiles, that proved the 
firli: takln^T away by force againit the child's will, tb.o there 
were no witnelTes to prove the marriage forceabls but herfelf, 
who expreily fwore, that llie was married as;ainft her will ; 
upon all which circumftances it was ruled, that Ihe Ihould be 
examined in evidence, and the credibility of her teftimony 
left to the jury ; but moil: were of opinion, that had Ihe lived 
with him any coniiderable time, and affented to tJie marriaj^e 
by a free cohabitation, Ihe iliould not have been admitted as 
a witnefs againft her hufoand ; he was convi£l:ed and had 
judgment of death, and was executed. 

• Regularly an infant under fourteen years is not to be exa- 
iwined upon his oath as a witneis ; but yet the condition of 
his perfon, as if he be intelligent, or the nature of the facT: 
i^ay allow an examination of one under that age (m), as in 
cafe "of witchcraft an infant of nine years old has been al- 
lowed a witnefs againft his own mother. Dalton. («) 

And the like may be in a rape of one under ten years upon 
the ftatute of 1 8 £//2C. cap. 6. and the like hath been done in 
cafe of buggery upon a boy upon the ftatute of 25 H 2. 
cdp. 6. 

And furely in fome cafes one under the age of fourteen 
years, if otherwile of a competent difcretion, may be a wit- 
nefs in cafe of trealon : vide qiu fupra dixi p. 2 6. 

A man concerned in point of intereft is not a lawful accu- 
fer or witnefs in many cafes, the party to an ufurious con- 
trail cannot be a witneis to prove an ufurious contra6l upon 
an information, if the money be not paid, for he fwears to 
avoid his own debt or fecurity {0) ; but if the money be paid 
4 he 

im) By the laws of T:ia a child ten {tr) Dah. yuji. N. Edit. /. 546. 
years old was allowed to be a witnefs In (fc) Co. Lit. 6. l>. 
theft. Vide LL, Inn^, I. 7. 



Hifioria Placitorum Cor once, 30;^ 

he may be a witnefs to prove it, where another informs, for 
he is to t^ain nothing* 

And therefore if any man hath the promife of the goods 
or lands of the party attainted, he is no lawful witnefs to 
pro\'e the treafon. 

A perfon outlaw'ed in- trefpafs is neverthelefs a Ia\\'ful wit- 
nefs, but no lawful juryman or indi(£ler in caie of felony or 
treafon, Sir William Withipots cafe, (p) 

A father or fon or adverfary in a liiit is a w^itnefs for or 
agairit a perlon accuied ot any crime, yet not always a com- 
petent juryman. 

A particcps criminis is in fome cafes a lawful acCtifer within 
this ftatute, in fome cafes not. 

An approver lliall be f\Vom to his appeal, Stamf. Pla.Cor. (^); 
but it feems, that he Ihall not be a witnefs upon the trial, if 
the party accufed. put himielf upon his country, becaufe, if 
he fail in proxang the party guilty, he fhall be hanged. 

In Sir Percy Crcsbys caie, P. i 9 'Jac. Noye's Rep. p. 154. pla- 
cito6']6. in Camera StcHata, if two defendants be charged for 
a crime, one ihall not be examined againft the other to con- 
vift him of an cftenie, unlefs the party examined confefs him- 
felf guilty, and then he IhaH be admitted. 

9 Dec. I 5 Car^ 2. at Newgate , Henry Trerc was indi£led of 
burglary, and by advice of Keeling chief juftice. Brown ju- 
Ifice, and Wilde recorder, Perrin, that was in gaol for two 
other robberies, and confeffed himfelf to be iu this burglary, 
was fworn as a witnefs againft Trew, but he was not indi£led 
of the burglaries or robberies. Ex libro Bridgman. 

iQ Dec. \66i. Tonge, Philips^ and others (r) were indicled 
for treaion for compallmg the king's death, the queftion was, 
whether thofe, that were parties in the compaifing, w^hich 
were not yet pardoned, nor indicled, might be produced as 
witnelTes, namely Riggs and others ; and upon conference 
with all the judges theie points were refoived. 

I. That 

(/>) Cro. Car. 154, 147. W. Jons% (r) Kcel.ii. State Trials, FoLll. p. 
198. 48S. . 

{^) Zikll. caj>. J J. /. 145. a. 



304 Hijtoria Placitoriim Coroiue. 

1. That the party to the treafon, that confefleJ It, may 
be one of the two accujfers or witnefles in cafe of treafon, 
for the ftattite intended two fuch witnefTes, that were allow- 
able vvitnelTes at common law, and fo may a particeps crimi^ 
nis be admitted as a witnefs, and was admitted to give evi- 
dence to the jury ; but the jury may, as in other cafes, con- 
lider of the evidence and credit of the witneffes, but he is 
fufficient to fatisfy the ftatute. 

2. That the confeilion before one of the privy council or 
a juftice of the peace being voluntarily made without torture 
is fufficient as to the Indi£lment or trial to latisfy the llatute, 
and it is not neceffary, that it be a confeilion in court ; but 
the confelTion is fufficient, if made before him that hath 
power to take an examination. 

3. The king having promifed a pardon to Riggs, if he 
would difcover the plot, he performd that part by his difco- 
very ; and this was held by all no Impediment to his teftimo- 
ny, for the promiie was not applied to witneffing againft any 
other ; but two juftices (/) held, that if the king promifed a 
pardon upon condition, that he would witnefs againft any 
others, and that being acknowledged byi^/^^iwhenhe took upon 
him to give evidence, isfc. that will make him uncapable to 
give evidence^ becaufe he fwears for himfelf (?) ; but in this 
point the greater number \\^ere of a contrary opinion (u\ ex 
libra Bridgman verbatim^ and I remember the coniukation and 
refolution accordingly. 

And accordingly at the feffions o£ Newgate iS-ji. Mary 
Trice was convi6led of treafon in clipping the current money 
of England by the teftimony of thofe, that were participes cri' 
minis (at), namely Throgmorton and others, who brought her 
broad money upon allowance of i o /. per Cent, and carried 
off the dipt money into their mafkr's cafh. 

.4 The 

(/) Thefe were our author and ^. (x) But !t docs not appear in this 

Sroivn. cafe, whether they were promifed a par- 

C') Vi fie pojlea part. 2. cap. 17. don or not: the like rclolution was in the 

{it} Of this contrary opinion was the cafe of ycfcpb Clark for coining icCur.i. 

Ourt in the edit of Chrijiopkcr Layer, fee Kel. 33. but in that cafo the wis- 

Mkh. 9 Geo. I. S. R. State Tr. Vvl. VI. ncG had adually obtained a pardon. 
/. jjj). 



Hifioria Piacitorum Corona. ^^09 



The like conviftion was in the fame year of Hyde and 
others of robbery upon the his;h\vay by One, that was a party 
in the robbery, but not indi6led. 

But in thefe and the like cafes i . The party, that ■ is the 
witnefs, is never indifted, becaufe that doth much weakeii 
and difparage his teftimony, but poffibly not wholly take a- 
way his teftimony. 2. And yet, tho fuch a party be admiffi- 
ble, as a witnefs in law, yet the credibility of his teftimony 
is to be left to the jury, and truly it would be hard to take 
away the life of any perfon upon fuch a witnefs, that fwears 
to fave his own, and yet confefleth himfelf guilty of fo great 
a crime, unlels there be alio very confiderable circumftancefi, 
which may give the greater credit to what he fwears. 

If A. B. and C. be indicted of perjury on three feveral in- 
dictments concerning the lame matter, A. pleads not guilty, 
B. and C. may be examined, as w^itneftes for A. for yet they 
ftand unconvicted, altho they are indi£led, 1 9. Car. i . B.R. 
Bilmores cafe. 

By the ftatute of i "^ 2 P. <^ M. cap. i 4. juftices of peace 
ought to examine the party and take informations touching 
oftenfes brought before them, and certify them at the next 
' gaol-delivery. 

llio juftices of peace cannot hear and determine treafon 
by virtue of their commillion of the peace, no nor take an 
indiftment of it, yet they may take examinations and infor- 
mations touching inch oftenfe of the party brought before 
them, and certify them according to that ftatute ; and thofe 
informations taken upon oath, as they ought to be, and fworn 
to by the juftice or his clerk, that took them, to be truly ta*- 
ken, may be read in evidence againft the pri loner, if the in- 
formant be dead, or not able to travel, and fworn fo to be ; 
yea by fome opinion, if he were bound over and appear not, 
they may be read, which feems to be queftionable. 

And in fuch cafe information upon oath taken before ju- 
ftices of the peace of one county may be tranfmitted be- 
fore juftices of gaol-delivery of that county, w^here the of^ 
fenfe was committed, i;/^. if the oftender were brouo-hr be- 

4 I fore 



30^ Hiftoria Placitonim Corona:. 



fore that juftlce ; qu-iore tamen, becaiife the ofFenfe was out 
of his JLirifdiftion ; yet vide Dalt. cap. iii. p. z^cj, accovf 
dant. (j) 

He, that hath a remainder expectant upon an eftate-tail, 
fliall not be allowed as a witnefs, and fo ruled, but a diffei- 
for may be a witnefs to a deed made to the tenant, i 2 
Jjf. 12. 

Mich. 16 $z. A commiffion iffued to examine the validity 
of a marriage fuppofed to be done by force, and upon that a 
divorce was had : an indiilment was againft Wel/Jj, that mar- 
ried the woman, the depoiitions in the caufe of divorce were 
offered to prove the force, but rejefted, becaufe in a fuit of 
another nature and jurifdiilion, WeljJj^ cafe. 

A man convitl of conlpiracy, perjury, or forgery is not a 
lawful witnefs. Crompt. de pace regis iz"]. h. Dalt. cap. i 1 1. (^) 
but if he be pardoned, it feems he may be a witnefs. 

And thus far concerning the capacity or incapacity of the 
witnefles. 

2. In relation to the manner of their teftimony, the opinion 
in Dyer of a witnefs by hearfay i Mar. Dy. 99-1. was rejected 
by all the judges in the lord Lwm\y% cafe, H. 1 4 £//^. Co. Pla. 
Cor. 2 ^. but if it be a hearfay from the offender himfelf 
confeiling the faft, fuch a teilimony upon hearfay makes a 
good witnefs within the ffatute. 

Tho information upon oath taken before a juftice of peace 
may make a good teffimony to be read againfl the offender 
in cafe of felony, where the witnefs is not able to travel, yet 
in cafe of treafon, where two witneffes are required, fuch 
an examination is not allowable, for the ftatute requires, that 
they be produced upon the arraignment in the prefence of 
the prifoner to the end that he may crofs examine them. 

And thus much concerning the Itatutes in the time of Ed- 
tvard VI. and evidence upon indi£l;ments, I ihall only add 
this. 

In civil a£lions, as trefpafs againfl: A. B. and C. if no evi- 
dence be given againff any one to prove him guilty, he may be 
4 examined 

O) N. Edit. caj^. i6\. p. 544. («) /. 542. 



Hiftoria Placitonim Coronce. ifTj 



exiimined on the part of the defendant, and Ihnds as a com* 
petent witnefs ; and I fee no reafon, why if two or three 
perfons be indicled, and no evidence given againft one or 
more of them, but that he may be a witnefs for the other ; 
but otherwife it is, if there be but a colourable evidence 
againll him. (*) 



CHAP. XXV. 

Concerning treafons declared a«d enafied 
from I Mar. till this daj, viz. 13 Car. 2. 



I 



Come to the llatutes concerning treafon in the times of 
queen Mary, queen Elizabeth, and lo downwards. 
The firft ftatute in this period is i Mar. cap. i . confifting of 
three tlaules. 

I . " That no a6l, deed or ofFenfe being by a6l of parlia- 
*' ment made treafon, petit treafon, or mifpriiion of treafon, 
by words, writing, cyphering, deeds, or otherwife whatfo- 
ever, iViall be taken, had, deemed, or adjudged to be high 
treafon, petit treafon, or milprifion of treafon, but only 
fuch, as be declared and expreffed to be treafon, petit trea- 
fon, or milprifion of tre<don, in or by the a£l of parlia- 
*' ment of 25 E. 3. touching treafon or the declaration of 
'' treafons, and none other, nor that any pains of death, pe- 
" nalties, or forfeitures in any wife enfue or be to any oifen- 
*' der or offenders for doing or committing any trealon, pe- 
*' tit treafon, or mifpriiion of treaibn, other than fuch as be 

"in 






(*) Our author fTiould here have pro- ir. but probably he thought that fuffi- 

<:eedcd to his fourth general head, and cientiy done by the Tecond refolution in 

have fliown, what would be a confcffion 'ToH^e'6 cafe mcntiond by him, J>. 5P4, 
Within this liatutc of j (5? (J £i. 6. caj>. 



3o8 Hijtoria Plachorum Corona. 



in the faid a6l ordained and provided, any ftatu.te made 
before or after the faid 25 th year oi EdtPdrdlll. or any 
declaration or matter to the contrary notwithftanding. 

2. " That no advantage be given by this a6l: to any per- 
" fon arrefted or imprifoned for treafon, petit treafon, or 
" mifprifton of treafon the laft day of September lail paft, or 
" heretofore indidled or outlawed, or attainted of treafon, i^c 
" or excepted out of the queen's pardon. 

3. " 1'hat all offenfes made felony, or appointed to be 
" within the cafe of praemunire by any ftatute lince the firft 

day of the firft year of king Henry WW. (not being felony 
or within the cafe of praemunire before) and all and every 
branch, article, claufe mentiond or declared in the fame 
ftatutes concerning making of any offenfe felony, or within 
" the cafe of pr-^munire, and all pains and forfeitures con- 
" cerning the fam.e, or any of them, fhall be from hence- 
" forth void and repeald. 

This excellent lavv^ at one blow laid flat all thofe nume- 
rous treafons, mifprilions, iffc. at any time enadfed ftnce 2 5 
E. 5. and all felonies and pr^munires enacted in or after i H.S. 
As touching the firft of thefe. 

1. Hereby all thofe numerous treafons newly enabled in 
any former king's time fince 2 5 £. 5 . a catalogue of moft of 
which is before given, are wholly taken away. 

2. Hereby all thofe trealons, that were declared treafons, 
fo far forth as thofe treafons had their ilrength from fuch 
declarations, and were not really within the ftatute of 25 £. 3. 
iire wholly taken away, and left purely to be determined ac- 
cording to the ftatute of 2 5 £. 5 . and fo far forth and no far- 
ther, than that ftatute warranteth. 

And therefore the declaration of 3 R. 2. touching the kil- 
ling of an emibaffador, namely John Imperial/, the declaration 
of 3 H 5. concerning clipping and impairing of coin, the de- 
claration of Mortimers treafon in breaking prifon 2 H. 6. and 
all others of that kind are now wholly put out by this fta- 
tute, Coke upon the ftatute de frangentibus prijonam {a), tho it 
4 ^s 

• ■ ' (fl) 1 Co. Injlit. 5po, 



Hiftoria Placitorum Coronas. 309 

V — ■ — ■ — _^_ — -- '_ 

is true, that it appears hy i iff iP.iff M. cap. 1 1 . they thought 
that ch'pping and impairing of money had remained trealon 
by the declarative law of 3 H. 5. but the Ifatute of 5 E//;^. 
cap. I I. hath declared the contrary, and put that out of 
quelHon. 

3. But it repeald not the forfeitures for old treafons, tho 
thole forfeitures were enabled by ftatutes made after 25 £. 2. 
and therefore the forfeiture of eftates-tail for treafon given 
by 16 H. 8. continues notwithltanding this ftatute, Co. P. C. 
p. 1 9. and fo it was retolved by all the judges of England in 
the lord Shcffeild's cafe (^), Siai'if. 187. ^. 12 Elii^. Dy. 289. 
the reaton is before given cap. 2 3 . j!). 2 4 1 . for the relation of 
the repealing claufe is only to treafons not contained in 2 5 £.3* 
not to forfeitures not contained in 2 5 £. 3 . for indeed 2 5 £. 3 . 
creates no forfeitures, but only declares what the common 
law was, and ena£ls no farther touching forfeitures. 

4. But this a£l did not meddle with thofe new laws, that 
dire£ted fpecial proceedings, trials, i^c. or other matters of 
that nature relating to treafon, but that was done after by 
I i^ iP.iif M. cap. 10. de quo poflea. 

5. The preamble is very confiderable, which takes notice 
of the ieverity of former flatutes, that mads words only 
without other fi£l, or deed, to be high treafon, which was 
one of the caufes of this general repeal. 

Touching the fecond claufe, as is before oblerved in the 
precedent chapter, the repeal by i Mar. had difcharged all of- 
fenfes committed before that repeal againft the ftatutes re- 
peald, if it had not been fpecially provided to the contrary 
by the provifo of this a£l: touching perfons formerly indifled. 

Now as to the third claufe, it aifo took away all new fe- 
lonies made fince the firft dav of the reign of Henry VllJ. 
but whether either of thefe claufes of repeal did take awav 
thofe previous punifliments, Vv'hich for the firf-t offenfe was 
made forfeiture of goods, and the fecond or third offenfe 
made treafon, whether, I fay, this flatute took away thofe 
penalties, which were lefs than felony or treafon in the lirft 
or fecond offenfe, or only thofe punifhment?, which were 

4 K made 



310 Hijioria Placitomm Corona. 

made treafon or felony, may be a queftion ; as for inftance, 
that of I E.6. cap. 12. the 5th claule, which makes certain 
oftenfes by words punilhable witii forfeiture of goods for X\\\k 
oft'enfe, lofs of profits of lands lor iecond ofteiile, and trea- 
fon for the third ofFenfe; whether this llatute extends toiiK- 
ceffors, and Ctho the penalty of trealon for the rliird oftenfe 
be repeald by this acl) whether the penalties for the firll and 
fccond offenles be repeald, (eems to me doubtllil ; I rather 
think they are not. 

And p.ow this a£l having laid all former new treafons, fe- 
lonies, and mifprilions fiat, and reduced all to the llandard 
of 2 5 JS. 3 . the neceflity of ftate and public peace puts the 
queen and her parliament neverthelels to begin new provi- 
lions. 

I Mar. fejf. 2. cap. 6. " If any perfon (hall fallly forge or 
counterfeit any fiich kind of coin of gold or filver, as is 
not the proper coin of this realm, and is or lliall be cur- 
rent within this realm by the conient of the queen, her 
heirs or fuccelTors, or if any perfon do falfly forge or 
" counterfeit the queen's fign manual, or privy lignet, or 
privy feal, then every fuch offenfe iliall be judged high 
treafon, and the offenders, their counlellers, procurers, aid- 
ers and abetters judged traitors againif the queen, her heirs 
" and fucceffors, and iuffer and forfeit as in high treafon. 
Concerning this ftatute much hath been faid before. 

1. It is a perpetual a£l:, and not perional only to the 
queen, for as the word king may include a fuccelTor, fo the 
word queen may include a lucceeding king or queen, and that 
it was fo intended here is apparent by the words in the con- 
ckilion jJmll be adjudged traitors againfl the queen, her heirs and 
fucceffors ; and accordingly it hath been often refolved. 

2. That the forein coin (the counterfeiting whereof is made 
treafon by this aft) muft be fuch, as is fo made current by 
proclamation, for by the ftatute of 1 7 i^. 2. cap. i. forein coin 
is not to run in payment in England, and therefore there mull 
be an a£l under the great feal, as all proclamations ought to 
be, before it can be current within this ftatute ; vide accordant 
ftatut. 5 Eli^. cap. 1 1 . and 1 8 Bli^. cap. i . 

z 3. It 









Hifloria Plac'itorum Corona. 311 

« • I — - — '■ — ■'■^■^-^ — ^ 

3. It muft be a counterfeiting of that forein coin, which 
is ttamped in gold or filver, vi^. the greateft part gold^ or the 
greateft part filveir, for denominatio fit a majors part^ ; there* 
fore if there be a forein coin of copper, or brals and copper, 
it is not within this ftatiite, but it is not necelTary, that the 
counterfeit of it muft be gold or filver, for if that be copper 
gilt, or alchymy after the fimilitude of forein coin of gold or 
flivver, it is within this a£l:, becaufe the prototype is a coin of 
gold or filver. 

I Mar. fejjf. z. cap. 1 2. The a6l againfl riotous afTemblies. 
is the very fame in fubftance with that of 3 <i^4 £. i^. cap. 5. 
only changing treafon into felony within clergy, and nota beni 
the power given to fupprefs fuch aflemblies by force, and in- 
demnifying the lupprefTors, tho fome of the rioters be killed : 
this a£l: was continued by i 'Eli%. cap. 1 5. during that queen's 
life and till the next feflion after, and then expired. (/>) 

\^ 1^.^ M. cap. 3. "If any perfon fhall raalicioufly 
*' and of his own imagination fpeak any falfe, feditious and 
" flanderous news, rumors, fayings, or tales, of the king or 
*' queen, then the perfon being convicl and attainted, as in 
" the a£l is exprelTed, fliall be fet upon the pillory and have 
" both his ears cut off, unlels he pay one hundred pounds, 
" and fuffer three months imprilonment ; and if it be of the 
'' reporting of any other, then to ftand on the pillory and 
" lofe one of his ears, unlefs he pay one hundred marks 
*' within one month after judgment, and fuffer one month's 
" imprifonment. 

" And if any lliall malicioufly devife, write, print, or fet 
" forth any writing containing any falfe matter of Dander, 
reproach, or diihonor to the king or queen, or to the en- 
couraging, ftirring or moving of any infurre£lion or rebel- 
lion within this realm or the dominions thereof, or ihall 
procure the flime to be written, printed, or fet forth (the 
" laid cfFente not being puniihable as treafon within the fta- 
" tute of z*) E. 3.) the offender ihall for the firft offenfe 
" have his right hand ffricken off. 

" llie 

{Jj) But a new r.il to much the {i.mc purpofc was raaJe i Geo. i, cat. 5. which 
is perpetual. 



u 



312 Hijloria Placitoriim Coroud^. 

" The fecond of any of rhefe ofFenfes after a former con- 
" vi^llon Is made piipiiliable with lois of goods and perpetual 

imprlionment : jiillices of aliiie, ^c. Ihall hax'e po\\ er to 

liear and determine ofl:enies, ^c. and to commit perfor>s 

iutpe(£led without bail ; no perfon impeachal^le lor words, 
" unlefs convi£l: within three montlis after the oifenlc : peers 
" to be tried by their peers. 

Upon this atf tliefe things are obfervable: i. That the law- 
makers did not take feditious words to be within the llatute 
/}f 25 £. 3. for then they would have added the lame claufe 
as in the other cale, -vizc (not being treason within the fiatuu 
of z") E. 3.) Again, 2. Ihat they did take it, that fome fe- 
ditious writing mioht be treaion within the ilatute of 2 ? 
E. 3 . for it is an overt-a6l, as hath been formerly obferved (|). 
3. That as iome writings exciting infurreftion might: be trea- 
ion within the ftatute of 25 £. 3. fo fome writings, that 
might poiliuly by conftrii£l:ion have the fame efte£l, might 
not be within that liatute, for the law-maakers cannot be lup- 
poied to intend to make any thing, that was treafon within 
the ftatute of 2 5 £. 3 . to be lefs than treafon ; and by con- 
iequencc and coniequential illation many things might by a 
witty advocate be conftrued and heightened to be to move in- 
lurre£lion and rebellion, w^hich immediately, and in their 
own nature, nor in the intention of the writer, were never 
io intended ; this ftatute died with the queen, but was revived 
1 Elii^i. cap. 6. during that queen's life. 

\ isi' 1 P.i^ M. cap. 9. " If any by exprefs words or fay- 
" ings have prayed, or Ihall pray, that God v/ould Ihorten 
" the queen's life, or take her out of the w^ay, or any fuch 
" like malicious prayer amounting to the fame cfieCr, they, 
" their procurers and abetters Ihall be adjudged traitors. 

" But as to any the oftenies aforeiaid perpetrated during 
" that feflion of parliament, if the offenders ihall Ihew thcm- 

ielves penitent upon their arraignment, no judgment of 

treafon Ihall be giv^en againif them, but a leil'er punilhment 

may be inllided. 

2 So 

(t) /. II*. 






Hifloria Placltorum Corona. 3 1 3 

So that they took not this to be a treafon within the fta- 
tute of 1*) E.7^, neither is it thought to be a very great of^ 
tenfe, for it is an appeal to God, who we are lure is not moved 
by Inch willies ancf prayers contrary to his own command. 
Thou fljah not cilrje the ruler of thy people ^ Exod. xxii. 28. 

I <y 2 P. i?' Af. cap. I o. confilleth of feveral remarkable 
claufcs. 

I. "If any during the riiartlage between the king and 
" queen ihali imagine to deprive the kin<7 from having jointly 
" with the queen the ftyle, honor and kingly name of the 
'^^ realms and dominions belonging to the queen, or to de- 
" ftxoy the king during the m.atrimony, or to deftroy the 
" queen, or the heirs of her body, being kings or queens of 
" this realm, or to levy war within the realm or marches 
" of the fame againft the king during the marriage, or a- 
" gainft the queen or any of her faid heirs, kings or queens 
" of this realm, or to depofe the queen or the heirs of her body 
*' kings or queens of this realm from the imperial crown of this 
" realm, and the faid compaffings malicioufly, adviiedly and di- 
" reftly lliali utter by open preaching, expreis v/ords or fayingr-^ 
" or if any pcrion by exprefs words Hiall malicioufly, advi- 
*' fedly, and direftly declare or publilli, that the king during 
*' the marriage ought not to have jointly with the queen the 
*' ftyle, honor and kingly name of this realm, or that any 
" perfon, being neither the now king or queen, during the 
*' marriage between them ought to have the ftyle, honor 
*' and kingly name of this realm, or that the now queen 
*' is not, or of right ought not to be queen of this realm, 
*' or after her death the heirs of her body, being kings or 
*' queens of this realm, ought not fo to be or to enjoy the lame, 
" or that any perfon, other than the queen during her life, 
or after death, other than the heirs of her body, as long as 
one of the heirs of her body ftiall be in life, ought to be 
queen or king of this realm, then every luch offender ihall 
" lofe to the queen all his goods and chatties, and forfeit 
" the iflues of his lands during bis lile, and have perpetual 
" imprifonment ; the fecond oftenie after a former con- 
" vidlion lliall be treafon, 

4 L z. " And 



514 Hifloria Placitorum Coronas. 

2. " And if any by writing, printing, overr-a£]:, or deed 
" iliall maliciouily, advifedly and dlre£lly utter the things 
*' aforefaid, then they, their abetters, procurers, counlellors, 
" aidersj and comforters knowing the faid olienfe to be done, 
" and being thereof convi6led and attainted by the laws and 
" jtatutes of this realm, lliall be adjudged high traitors, and 
" forfeit their goods, lands and tenements to the queen, her 
" heirs and fucceffors, as in cafe of high treafon. 

3. " Proviiion for the government of the queen's chll- 
" dren. 

4. " If any perfon, during the time that the king fhall 
" have the ordering of the queen's children, fhali compafs to 
" deftrov the king;, or to remove him from the government 
" of the faid children, it iliall be treafon. 

5. " That all trials hereafter to be had, awarded or made 
for any treafon, iliall be had and ufed only according to the 
due order and courfe of the common laws of this realm, 
and not otherwife, faving to all perfons, (other than the 
offenders and their heirs, and fuch perfons as claim to any 
of their ufes,) all fuch rights, titles, interefts, poifeffion, 

*' leafes, ^c. which they had at the day of the committing 
*' of fuch treafons, or at any time before, as if this adi had 
" never been made. 

6. " Concealment of any high treafon fhall be adjudged 
" only mifprilion of treafon, and to forfeit and fuffer as in 
" cafe of miipriiion notwithilanding this a£l:. 

7. " Trial by peers is laved in treafon or miipriiion of 
" treafon. 

8. " None to be impeached for words, unlefs indldled 
" witliin fix months after the offenfe. 

9. " Witneiles examined to or depofing any treafons in 
*' this acl, or at leail two of tliem iliall be brought forth 

before the party arraigned, if he require the fame, and fay 
openly in his hearing what they can fay againft him con- 
cerning the treaions in the indidlment, unlefs the party ar- 
" raigncd Iliall v/illingly confefs the lame upon his anaign- 






" ment. 



10. "In 



Hijloria Placitorum Coron£. 31^ 

I o. " In all cafes of high treafon concerning coin current 
within this realm, or counterfeiting the king's or queen's 
lignet, privy feal, great feal, or fign manual, fuch man- 
ner of trial, and no other, Ihall be obferved and kept, as 
heretofore hath been ufed by the common laws of this 
" realm, any law, ftatute or other thing to the contrary not-* 
" withftanding. 

" The counfellors, procurers, comforters, and abetters for 
*' the firll ofFenfe to luifer as the principal in the firft ofFenfe, 
" and procurers, comforters and abetters for the fecond of* 
" fenfe to forfeit as the principal in the fecond oftenfe. 

This ftatute for fo much as concerns the forfeiture or pu- 
niifiment infli£led for words, ^e. and likewife the treafons 
newly enabled was but tempotv^ry, and died when the queen 
died without iffue. 

But there is ftill obfervable, 

I . The great diftinftion, that was ufed between words and 
writing; thofe very things, which written were made in the 
firft ofFenfe treafon^ being only fpoken were in the firft of- 
fenfe but mifdemeanor, altho many of the words there men* 
tiond founded high, as namely that the queen is not or ought 
not to be queen, but fome perfon elfe, whereby we may ga- 
ther the opinion of parliaments in thofe times, that regularly 
words, tho of a high nature, were not treafon, nor an overt- 
3(0: of compalling the king's death. 

The 2d thing obfervable is, that here are fome treafons 
newly ena6led, which yet were treafons within 25 £. 5. as 
compafling to deftroy and depofe the queen, and declarincr 
the lame by writing or overt-a^l ; and therefore this claufe 
\\ as omitted in the ftatute of i Eli^. cap. 6. and left to the 
ftatute of 2 5 £. 3 . 

The 3d thing obfervable herein is, that the queen's huf- 
hand is not within the aft of 2 5 £. 3 . therefore it was necef- 
lary to have an a6l of parliament lor the fecuring of him, 
who was only the queen's hulband. 

4. That tho there was a communication of the regal title 
to the queen's huftiand, yet even that could not have been 
but by acl of parliament, and yet no more is communicated, 

but 



3l6 Hiftoria Placitonim Corona. 



but the title and name, not the authority and rule of a king 
of England. 

"Ihe fifth claufe concerning reftoring of trial of treafon 
according to the courfe of the common law is of great con- 
fequence and ufe, and Is perpetual. 

1. By this claufe of the llatute as to the cale of high trea- 
fon, the ftatutes of 27 £. 3. cap. 8. 28 £. 5. cap. 13. 8 H. 6. 
cap. 2 9. for trial of an alien per medietatem I'mgiu are wholly 
repeald, and the trial lliall be by Englij^men, i Mar. Dy. 144. 
Shirlys cafe, i/. 3 6 Eli^. Dr. Lope^s cafe ruled per omnes jujii"- 
ciarios. Co. P. C. />. 27. 

2. The trial of a lunatic without iiTue joined by 3 3 H. 8t 
cap. 20. and in a forein county by 33 H 8. cap. 23. and for 
treafons in Wales 26 H. 8. cap. 6. 3 2 H. 8. cap. 4. are all re- 
peald by this ftatute. Co. P.C. p. 24, 27. 

3 . But whether the llatute of i £. 6. and $ i5f 6 E.6. con- 
cerning two witncfles be hereby repeald videjtiprap. 298. only 
the 9th and i oth claufes of this ftatute feem ftrongly to imply, 
that this ftatute intended the repeal of It, for otherwiie why 
Ihould that fpecial provifton be added in this ftatute, for at 
le:ift two of the witnefles formerly examined to repeat their 
teftimony to the prifoner, if he deftres it, when the ftatute 
of $ i^ 6 E. 6. had more effeftually provided for the fame 
thing. 

4. But the ftatute of zZ H. 8. cap. i 5. concerning the trial 
<j{ treafon committed upon the high lea Is not repeald, nor 
the ftatute of 3 5 H. 8. cap. 1. for trials of treafons out of 
the realm, becaufe there was no way regularly appointed at 
common law for the trial of thofe treafons being done out of 
the bodies of counties ; but it feems the trial of treaions 
committed in any place In rivers, or parts within the bodies 
of counties, tho the admiral claimed jurIfdi£lion there, is re- 
ftored to the common law, where it w^as originally triable. 

Neither doth the a6l extend to petit treafon, for treafon 
generally fpoken Is Intended of high trealon j therefore the 
trial as to that ftands in the fame m.:inner, as it was before 
the making oi' that ad. 

2 5. Pe- 



Hifioria Placltorum Corona. 317 

5. Peremptory challenge in cafe of high treafon is rellored 
by this aQ:, and the ftatute of 33^8. cap. 23. as to that 
point repeald, vide accordant Co. P. C. p. z"]. i^ Ubros ibi ; fd 
that at this day he may challenge thirty-five, 7;/;^. under three 
juries peremptorily. Co. P. C. ibidefa. 

i^ zP.iff M. cap. II." Whofoever fhall bring from the 
*' parts beyond fea into this realm, or into any of the domi- 
" nions of the fame, any falfe and counterfeit money, being 
current within this realm by the fufFerance and confent of 
the queen, knowing the fame coin to be falfe and coun- 
terfeit, to the intent to utter or make payment with the 
" fame w^ithin this realm, or any of the dominions of the 
*' fame, by merchandizing or otherwife, the offenders, their 
" counfellers, procurers, aiders and abetters in that behalf, 
" fhall be adjudged offenders in high treafon, and after law- 
" ful conviftion fhall fuffer and forfeit, as in cafes of high 
" treafon. 

" If any be accufed or impeached of any offenfe within 
this ftatute, or of any other offenfe concerning the impair'^ 
ing, forging, or counterfeiting any coin current within this 
kingdom, he Ihall be indifted, arraigned, tried, convi£l:ed, 
" or attainted by fuch like evidence, and in fuch manner 
" and form, as hath been ufed and accuftomed within this 
" realm before the firft year of the reign of Edward VI. any 
" law, ftatute, ^c. to the contrary notwithftanding. 
Upon this ftatute feveral things are obfervable : 

1. That the forein coin in this cafe muft be fuch, as is 
made current in this realm by the confent of the queen, 
which cannot be without proclamation by wiit under the 
great feal, as hath been before faid p. iin^^ t^io. 

2. That the party, that brings it in, muft know it to be 
counterfeit. 

3. That it muft be brought into the king's dominions from 
fome place, that is out of the king's dominions, and therefore 
the importation out of Ireland is held not to be an importa- 
tion within this ftatute, for that is within the dominions of 
this realm, tho not within the realm. 3 H. 7. 10. i^ vide fu- 
pra cap. 2c. ^. 2 2 5. Co. P. C p. 1 8. 

4 M 4. It 



3i8 Hifloria Placitorum Corona. 



4. It muft be brought with an intent to merchandize or 
make payment within this reahn, and this intent may be tried 
by circumftances, tho the offender hath not yet a£lually 
made payment or merchanc#zed with it : vide antea p. 229. 

5. This is a new law, for the ftatute of 4 H. 7. cap. 18. 
whereby it was formerly enafted, is repeald by i Mar. cap. i . 

6. It is a law perpetual, tho it fpeaks only of coin made 
current by the confent of the king and queen our fovereign 
lord and lady, and fo it hath been ftili taken. 

7. That at this time it was taken, that impairing of the 
coin current within this realm was treafon as to the proper 
coin of this realm by force of the declarative law of 3 H. 5. 
cap. 6. and that this was not repeald by i Mar. cap. i . for there 
was no other law in force newly enafted for making impair- 
ing of the coin treafon between i Mar. cap. 1 . and 1 i^f z P. 
^ M. cap. 1 1 . but this error is reformed by the declaration of 
5 Eli^. cap. 1 1 . 

8. That without any difficulty in the cafe of counterfeiting 
coin airrent in this kingdom there is no neceflity of two 
witneffes, neither upon the trial nor upon the indiclm.ent, 
fo that queftionlefs, as to this treafon, the claufe of the fta- 
tiites of I and $ E. 6. concerning two witneffes is wholly re- 
peald, for the ftatute faith he lliall be indited, tfc. the omif- 
lion of which word in the general claufe o£ i i^ 1 P. is^ M. 
cap. 10. which concerns treaions in general, is that which 
gave the great countenance to that opinion of my lord Coke^ 
that in other treafons there muft be two witneffes upon the 
indidlment, tho that ftatute, as to the trial, remitted the 
courfe of the common law. 

I come now to the time of queen Elizabeth.. 

The ftatutes, that concern treafon, I Ihall range in three 
ranks: i. Such as more^immediately concern the fafety of 
the queen's perfon. 2. Such as concern the money of the 
kingdom. 3. Such as concern the fafety of the queen's go- 
vernment in relation to papal ufurpations and matter of re- 
ligion. 

I. I begin ^^ath the firft rank, fuch as concern more im- 
mediately the fafety of the queen's perfon. 

z I Eli^. 



Hi ft or i a Placitorum Cor once. 319 

I £//^. ca-^. 5. The liatute of i C/ 2 P. ^ M. cap. 10. is re- 
icited, and that that ftatute extended only to queen Mary 
and the heirs of her bod)', the \^ery fame ftatute in effeft is 
enabled over again, only with an application thereof to queen 
Elizabeth, and the heirs of her body, and almoft all the fame 
claufes are over again, except that, which concerns the trial 
of treafon according to the common law, and the claufe of 
compaffing to deftroy the queen, and manifefting the fame 
by writing or overt-acl: ; two witneffes are required to the 
indictment and arraignment of the prifoner : this a6l expired 
upon the queen's death without iifue. 

I Eli^. cap. 6. The ftatute of i Mar. Jeff. 2. cap. 3. con-* 
cerning ieditious and falfe rumours is revived, as in relation 
to queen Elizabeth, under the fame pains and penalties, as are 
therein contained, as tho the fame acl had extended to the 
heirs and fucceffors of queen Mary, any doubt to the con* 
trary notwithftanding ; but this was perfonal to the queen 
and the heirs of her body, and was repeald by 23 Eli^. 
cap. 2. 

I 3 Eli^. cap. I . "If any perfon during the natural life of 
" the queen Ihall, within the realm or without, compafs or 
" imagine the death or deftru£lion, or bodily harm tending 
*' to death or deftru£lion, maiming or Wounding of her per* 
" fon, or to deprive or depofe her from the ftyle, honor, or 
" kingly name of the crown of this realm, or of any otlier 
realm or dominion belonging to her majefiy, or to levy 
war againft her majefty within the realm or without, or 
to move or ftir any foreiners with force to invade this 
" realm, or any other her majefty 's dominions being under 
" her obeyfmce, and fuch compafTes, imaginations, devices, 
*' or intentions, or any of them fhall malicioufiy, advifedly, 
" and dire£lly publiili, hold opinion, affirm or lay by any 
*' fpeech, exprefs words or fayings, that the queen during 
her life is not, or ought not to be queen of this realm of 
England, and alfo of France and Ireland, or of any other 
her majeily's dominions being under her obeyfance during 
" her life, or fliall by writing, printing, preaching, fpeech, 
" exprefs words or fayings, malicioufiy, advifedly, and di- 

" reaiy 



a 



310 Hijioria Placitorum Cor once. 

" re£l:Iy publifli and affirm, that the queen is an heretic, 
" fchifmatic, tyrant, infidel, or ufurper of tb.e crown, every 
" fiich oftenle ihall be taken, deemed and declared by autho- 
" rity of this parliament to be high treaion ; and the offen- 
'^' ders, their abetters, counfeilors and procurers, and the 
" aiders and comforters of the fam.e oftender?, knowing the 
*' fame, being indiired, con\icfed and attaint according to 
" the iifual order and courfe of the common lav*', or accord* 
" ing to the a6l of 3 5 H 8. for trial of treafons out of the 
'*' realm, Ihall .be deemed traitors, and fuft'er and forfeit as 
" traitors. 

2. "If any perfon of any condition, place or nation, du- 
*' ring the queen's life pretend, utter, or publilh themfeh^es, 
" or any of them, or any other, tlian the now queen, to have 
*'■ right to enjoy the crow n of England during the now queen's 
" life, or ffiali during the queen's life uiurp the crown, or 
" the royal title, ilyle or dignity of the crown oi^ England, or 
*' iliall during the queen's life hold, or affirm, that the now 
" queen hath not right to hold the faid crown, realm, ffyle, 
*' title or dignity, or fliall not after demand made on the be- 
" half of the queen acknowledge effe£lnally, that the now 
" queen is true and rightful queen of this realm, they lliall 
" be difabled during their natural liv^es only to enjoy the 
" crown by fucceflion after the queen's death, as if inch per- 
^' fon were naturally dead. 

3. "If any perfon Ihall during the queen's life hold or 
" affirm a right, interelf or fucceffion to the crown to be in 

any fuch claimer, ufurper or pretender, or not acknow- 
ledger after notification by proclamation of fuch claim, ufur- 
pation or pretenle, fuch perfon ihall fuffer as a traitor. 

If any ffiall maintain, that the common laws, not al- 
tered by parliament, ought not to dire£l the right of the 
crown of England, or that the queen [_Eli^al^etl}] with and 
by the authority of parliament is not able to make la'^^s of 
" fufficient force to limit and bind the crown of England, 
*' and the defcent, limitation, inheritance, and government 
" thereof, or that this flatute, or any ftatute to be made by 
" authority of parliament with the queen's royal affent for 
2 " the 



a 

A " 



u 
u 
il 



Hijioria Placitonim Cor once. ifii 

" the limiting of the crown to be jurtly in the queen's per'=' 
*' fon is not, or ought not to be of fufficient force to bind, 
" limit, reftrain, and govern all perfons, their rights and tl- 
" ties, that in any way might claim an intereft, or poffibi- 
" lity in or to the crown of England in poffeffion, remain- 
" der, inheritance, fuccellion, or otherwife, eA^ery fuch per- 
" fon fo holding, affirming or maintaining during the queen's 
" life fliall be judged a high traitor, and every perion fo 
" holding after the queen's death fhall forfeit all his goods 
*' and chatties. 

5. " If any by writing or prlntins; declare, before the 
" fame be declared and eflabllilied by a6l: of parliament, that 

any particular perfon ought to be right heir to the queen 
(except the natural iffue of her body) or that ihall print, 
fet up, or fell fuch book, for the firft offenfe he Ihall fuf- 
" fer one year's imprifonment, and forfeit half his goods, 
" and for the fecond cfFenfe it fliall be a pr^mimire. 

6. " Trial of a peer by his peers is faved. 

7. " Saves the right of all, other than the offenders and 
" their heirs, claiming only as heir to the offender. 

8. " Offender within the queen's dominions fliall be in- 
" di£led within fix months, and out of the dominions within 
" twelve months. • 

9. " No perfon to be arraigned for any offenfe within this 
a61:, unlefs it be proved by the teftlmony, depolitlon, or 
oath of two lawful and fufficient witnefles, w^ho Ihall at 
the time of the arraignment of fuch perfon be brought be- 

" fore the party oftending face to face, and there declare all 
" they can lay agalnft the party arraigned, unlefs the party 
" arraigned Ihall without violence confefs the fame. 

I o. " The aider or comforter of fuch, as ffiall affirm the 
*' queen a ichlimatic, heretic, tyrant, infidel, or ufurper, fliall 
" for his firif offenfe, knowing the fame to be committedj 
" incur a pr^munircj and for his fecond offenfe, after con-* 
viilion of the former, IKall be a traitor. 
11." Provided, that giving charitable alms in money, 
meat, drlnk^ apparel or bedding for fuftentation of the 
body, or health cf any offender in any offenfe, made trea- 

4 N " fon 



a 






32.1 Hiftoria Placitornm Corona. 



" Ion or pr^mimire, during the time of his impriionment, 
" fliall not be taken to be any offenfe. 

Tho this a6l be antiquated by tlie death of queen £//^^- 
beth, yet there are (as in other :i£ls of this nature that are 
expired) divers matters that are obfervable for the true un- 
derllanding of the common law, and therefore I have re- 
peated many acts of this nature nt large. 

1. This a£l doth contain and enadl: iome treafons as new 
treafcns, whkh certainly were trealons l)y the ftatute of 2 5 
£.5. as compaffing to dellroy or depole the queen, and ma- 
nifefting the fame by writing, printing, or overt-a£l ; but it 
was thouglit or at leaft doubted, that manifefting the fame 
barely by words were not within 2 ^ £. 3 . and it appears by 
the preamble, that this a£l was made to take away fome 
doubts, as well as to provide new rftnedies. 

2. It partly appears by this afl, that the bare ccnfpiracy 
to levy war was not treaion by the ftatute of 2 5 £. 3. with^ 
out a war levied, and accordingly it v>^as refolved P. 3 9 LV/:^. 
Burtons cafe, Co. P. C. p. i c. and therefore we are to be care- 
ful not to apply all convi61:ions of trezfon in the queen's 
time, as judgments declarative of the ftatute of 2 5 £.3. de pro" 
ditionibus, becaufe they were oftentimes indi61:cd upon this fta- 
tute in the queen's time, and the general conciuiion of the 
indictment contra formam Jlatuti, and lometimes generally 
contra formam ftatut. with an abbreviation was applical'le to 
any ftatute then in force, which was moft efte6lual to this 
purpofe. 

In Anderfons reports, part. 2. n. 2. (c), it appears that in 3 y 
Eli^. divers apprentices were committed for great riots, diver* 
other apprentices confpired to deliver them out of prilon, to 
kill the lord mayor of London, to burn his houfe, to break 
open two houfes near the Tower, where there were arms for 
three hundred men, and to furniih themfelves ; after which 
divers apprentices threw about libels moving others to join 
with them and to affemble at Bunhill, \\^here divers to the 
number of three hundred alTembled, where they had a truni- 
pet and a cloke upon a pole inftead of a flag, and as they 
4 were 

(0 2 Anfierf. /. 4. 



Hifroria Placitorum Cor once. 313 



\vere going towards the mayor's hoiire, they were met by the 
iheriffs and fwordbearer, againft whom the apprentices oftereci 
reiiitance. 

It was refoh^ed, that this was treafon within the ftatute 
of I 3 El'i'Zc ^or it Vv'as an intention to levy war, and akho 
they intended no harm to the perTon of the queen, yet be^ 
caufe it concerned her in her office and autliority, and w^as 
for fuch things, which the queen by law and juilice ought to 
do, it was a levying war againft the queen, and they were 
condemned and executed. 

This proceeding was upon this ftatute, and yet perchance, 
the circumftances of the cafe v/holly laid togetlier, this might 
have been an aftual levying of war within 25 R 3. but they 
thought it fafer to proceed upon this ftatute. 

3. 'T'hat) tho regularly words alone make not an overt-ail 
of compaiiing of the queen's death, yet printing or writing 
may do it, Co, P. C. jfr. i 2, 14. and therefore an a6l of parlia-* 
ment was requilite to make it an overt-a£l: ; yet obferve how" 
cautloufty It is penned, malicioujly, ddvijcdly^ md dire^lly, isfc. 
leaving as little, as poifibly may be, to conftru£lIon. 

4. That defamatory words, tho of a very high nature, do 
hot always make treafon; there cannot be more venomous 
words ordinarily thought of, than to lay, the queen was an 
heretic, fchifmatic, tyrant, ufiirper, }'et an a£l of parliament 
v^as neceifary to make it treaion. 

5. That to make a man a principal in treafon by comfort 
or aid after the oftenfe committed it muft be knowingly, and 
therefore I never thought that opinion of Stamford, jol. 4 1 . ^. 
to be law, that a receipt of a felon after attainder in the: 
fame county made a perlon accefiary without notice, becaufe 
he Is bound at his peril to take notice, that he was attainted, 
for it oftentimes lies as little in the knowledge of many per-* 
fbns, who are convifl: or attainted of felony or treafon, as 
w hether a man be guiky of it : vide tamen Dyer 3 5 y. 

6. That regularly in a new treafon the aiding and com- 
forting of the traitors, knowing them to be fuch, makes a 
man guilty ot treaion, and therefore here is care by exprefs 
provilion to make the firl't offenie a pr.tmunire. 

J. Here 



324 Hifloria Placitoriim Corouoe. 

1 ■ ^ 

7. Here is great care to dilable the heir to the crown from 
fucceeding, if he ufiirp during the queen's life; but tho all 
the care imaginable was there ufed, yet it hath been held^ 
that by the acceffion of the crown to the perfon fo difabled, 
all thefe difibilities have vanilliedj vide 1 H. 7. 4. (</) : fee 
jVlr. Piojvdens learned tra£l touching the right of fucceflion of 
Mary queen of Scotland. 

8. Nota concerning the power of the king to limit the 
crown by conlent of parliament. 

9. That they took the ftatutes of i and of ^ i^ 6 E.6. 
concerning two witnelTes to be determined, or at leaft not to 
extend to treafons afterwards enabled, ior other\Vife there 
needed not this fpecial care and provijion de novo for two 
witnelTes. 

10. That as the aiding or comforting of one, that fpeaks 
feditious words, made treafon on the fecond conviilion, muft 
be for the fecond oftenfe after a conviflion of the former^ 
fo the fecond oifenfe, tho committed after a former, is not 
treafon, unlefs it be alfo committed after a former conviction : 
the like method is in forgery upon the ftatute of 5 E//;^. cap. 
1 4. and generally that expolition holds in moft cafes, where 
the fecond oftenfe is fubjefted to a feverer punilliment than 
the former, for it is intended of fuch oftenfe committed after 
the convi£lion of a former, Co. P. C. 172. 

11. It is provided that charitable relief fhall not make a 
party guilty of treafon or py^mimire, as an aider or abetter ; 
this was a neceflary proviiion to avoid queftion. 

Regularly relief by victuals or clothes of a felon or of a 

traitor, after he is in cuftody or under bail, makes not a man 

an acceftary in felony, nor a principal in treafon ; but if he 

4 help 

(d) The wor^s of tKat book are, of the fucccfibr, and hinder him from 

^ba( the king ivas a perfon alle and fucceeding, but only that if notwith- 

difcharged frotn any attainder eo fafto. Handing he fhould get pofleflion of the 

that he took npoji hmz the govern7ncnt government, that pofleflion would purge 

and the being king ; fo that it was not all' difabilities, which is juft as much 

the bare acceffion or defcent of the crown, as to fay, that he, who can get 

but the being in aftual pofleffion of the the power into his hands notwithfland- 

rcgal government, which was couftrued ing an attainder or aft of parliament 

to remove all difabilities ; this cafe to the contrary, will not think himfelf 

therefore is no argument, that the i\a.- bound by fuch attainder or aft of parlii^ 

fiutc of 15 EIk. could not bar the right meat. 



Hifloria Placitorum Corona. 31'J 

i^ II - ■ 1 1. ■ ■ »—.—.■ ■■ ■ . , . _ — ii. ^^^^^^_ , ■ , . 

lielp him to efcape, that makes him an acceflary in one cafe 
and a principal in the other, Dalt. cap. io8. p. i?>6. (e), and 
with this agrees this provifo in the cafe of high treafon ; but 
nota it extends no farther than during the time of his impri- 
fonment, yet the law is all one, if he be under bail, for he 
is in cufiodia ftill, for the bail are in law his keepers, and he, 
that is deliverd to bail in the king's bench, is neverthelefs 
faid to be in cufiodia marefcalli. 

1 4 Eli^. cap. I . " If any perfon do within this realm, or 
" elfewhere unlawfully, and of his own authority corripafs, 
imagine, confpire, pra£l:ife, or devife by any ways or means 
with force, or by craft malicioufly and rebelliouily to take, 
detain or keep from the queen any of her towers, caftles, 
" fortrelTes or holds, or malicioufly and rebellioufly take, burn 
or deftroy them, having any of the queen's munition in 
them, or being appointed to be guarded with foldiers within 
the queen's dominions, and the fame compalTmg do advi- 
fedly by exprefs words or deeds utter and declare for any 
the malicious or rebellious intents aforefaid, it iliall be ad- 
" judged felony in the offenders, their aiders, comforters, 
" counfellers and abetters without clergy. 

" If any ihall with force malicioufly or rebellioufly detain 
from the queen any of her majefty's caifles, towns, for- 
treffes or holds within any of her dominions, or any of 
her iliips, ordinance or artillery, or munition of war, and 
not render the fame within fix days after proclamation, or 
" wilfuHy or malicioufly burn or deftroy any of her lliips, 
or bar any of her havens, this lliall be treafon. 
This a£l: to continue during the queen's life. 
We may fee by this a£l, that the opinion of the parlia- 
ment in that time was, that this confpiring to take forts or 
ihips by force or deceit was not treafon ; but' indeed the ac- 
tual taking them by force was levying of war againfl the 
king by the ftatute of 2 5 £. 3 . 

But if a man detains the king's town, or caftle, or fhips, 
and when any commilTionated by the king demands the fame, 
and it is refufed to be deliverd, and thereupon the king's 

4 O com- 

(f^ N.Eiiit, ca^.iSt. f.j^it 



<c 
if 
« 



ii 



ii 



326 Hifloria Placitorum Corome. 

commiflioner raifeth a power, makes an aflanlr, and they 
within ftand upon their guard, and repel force with force, 
this had been treafon within the ftatiite of 2 5 £. 3 . for it is 
a levying war, and fo not a bare detaining ; quod vide Co. P. C. 
p. I o. bis in eadem pngim. 

Again, if this detaining the king's caftle, or fort, or the 
caftle of any other, be barely fuch and without affault, yet 
if it be in compliance with a forein enemy, or in confederacy 
with him, this is treafon within the '<\di of 25 £. 3. and an 
overt-a6l of adhering to the king's enemies ; that therefore, 
which this aft makes treafon in detaining after proclamation, 
is a iimple detaining without the concurrence of the circum- 
llances above-mentiond, which was not treafon before the 
making of this adl. 

14 Eli-zi. cap. 1. "If any perfon fhall confpire, imagine, or 
*' go about unlawfully and malicioufly to fet at liberty any 
" perfon committed by the queen's Ipecial command for any 
" treafon or fufpicion of treafon concerning the perfon of 
** the queen before indi£l:ment of the perfon imprifoned, and 
fuch imagination or confpiracy Ihali fet forth, utter or de- 
clare by exprefs words, writing, or other matter, it fhall 
be mifprifion of treafon ; but if the party imprifoned be 
" indidted of any trealon concerning the perfon of the 
*' queen, it Ihali be felony fo to conl'pire and declare fuch 
*'• confpiracy, ut jupra. 

" If it be after attaljider or convi6lion, then fuch confpi*' 
'^' racy fo declared as aforefaid fliall be high treafon : " this 
adl to lail during the queen's life. 

lliefe things are obfervable upon this aft, i. Here Is no 
provifion againft the aftual dlfcharge or fetting at liberty, 
neither needed k, for if the party committed had really com- 
initted treafon, this was treafon even within the ilatute of 
15 £. 3. but if It were only a commitment for treafon, but 
no treafon committed by the perfon In cuilody, fuch delivery 
was not treaion, as appears before cap. 22. But 2. The con- 
fpiracy to do this, tho manifelled by open aft, was neither 
treafon, mifprifion of treafon, nor felony ; neither h it- at 
this day, but only a bare mildemeanor punilhable by fine 
2. ♦. anti 



<c 



«( 



Hifloria Placitorum Cor once, 317 

and imprifonment, tho the party imprifoned were indlGed, 
yea attainted. And 3. This a£i extends only to fiich trea* 
Ions, as concerned immediately the queen's per(on, not to 
treafons touching her feal or coin. 

And theie are all the a^ts, that were made in the queen'? 
time touching treafons, which more efpecially related to the 
iafety of her perfon, all which expired at her death. 

II. I come to thofe treafons, which were ena6led in tlie 
queen's time concerning coin, and they are three. 

5 Eliz^. cap. II." Makes the filing, wafhing, rounding, and 
clipping of the coin of this realm, or forein coin made cur- 
rent by proclamation, for lucre or gain, and their coun- 
fellors, confenters and aiders to be high treafon by virtue 
" of this 2B.. 

14 £//2^. cap, 3. " Makes the counterfeiting of forein coin 
" of gold or iilver, not current within this realm, mifpriiion 
*' of treafon in the offenders, their procurers, aiders and abet- 



" ters. 



1 8 £//!^. cap. I . " Makes the impairing, diminlfliing, falll- 
" fying, fcaling or lightning of the coin of this kingdom or 
" forein coin made current by proclamation for lucre-fake to 
" be high treafon in the offenders, their counfellors, con- 
" fenters and aiders. 

But of thefe fufficient hath been faid before in the bufinefs 
of money, forfeiture and upon the flatutes of i and 5 ^ 
6 E. 6. The fum of which is this : 

1 . That the treafons made by the afts of 5 and 1 8 Elii^, 
are new treafons, newly made by virtue of this a£l, and every 
body is eftopped to fay the contrary by reafon of the fpecial 
recital and penning of this a6l:, 1;/'^. Jhall be adjudged treafon 
by virtue of this aSi. 

2. That the forein coin, the clipping and impairing whereof 
is made treafon by this aft, muft be inch as is made current 
by proclamation, for it cannot be otherwife current by rea- 
fon of the prohibition of the flatute of 17 i?. 2. cap. i. and 
alfo, the word proclamation in thofe acls refer to forein coin 
fo legitimated by proclamation, not to the proper coin of 
this kingdom, which needs not a proclamation to; legitimate it. 

-3. The 



32.8 Hifloria Placitoriim Cor once. 

3. The trial and whole proceeding is to be according to 
the coLirie of the law by the exprels words of thefe a6ls and 
of I <y 2 P. ^ M. cap. 1 I . and therefore there need not two 
witnefles required by the a^ls of i and the $ ^ 6 E. 6. 

4. Not only the offenders themfelves, but the counfellors, 
confenters and aiders are within thofe afts ; but altho regu- 
larly in cafe of any old or new treafon made, the comforters 
and receivers of the oftender ara impliedly guilty of treafon 
by a kind of necefiary concomitance, yet it feems to me by 
the fpecial penning of this aB:, it extends only to counfellors, 
aiders and confenters (according to the refoiution in Conycrs 
cafe, Dy. 296.) as to the ofFenfes made treafon by thofe a6ls, 
tho pollibly it may be treafon, as to the receiver of a coun- 
terfeiter within the ftatute of 25 E. 3. according to my lord 
CoA^'s opinion, Co. P. C. cap. 6^. p. 138. for that is an old 
treafon, and no fuch reftri6lion by exprefs words to counfel- 
lors, aiders and aiTenters. 

5. The clipping and impairing, that makes treafon within 
thefe a6ls, mull by the exprefs words of the a£l be for gain 
or lucre, and io laid in the indiilment. 

6. Counterfeiting of coin not current to bring it within a 
praemunire by the ftatute of 1 4 £//-^. cap. 3 . muft be a coun- 
terfeiting of fuch lorein coin, as is of gold or filver, of con- 
iifts thereof for the greateft part, and extends not to the fc- 
rein copper, or leather coin. 

7. No corruption of blood or lofs of dower are to be by 
attainders of thele treafons. 

I J I. llieref'ore I come to the third fort of ftatutes made 
in this queen's time, which relate to the queen's government, 
and efpecialiy in relation to papal ufurpation. 

I Elii;^ cap. 3. is an a£l of recognition of the queen to be 
rightful ioverein of this realm, and all afls repugnant there- 
unto are repeald ; and cap. \ . the oath of fupremacy is en- 
abled to be taken by the perfons therein defcribed: the tenor 
of which oath followeth in thefe words, 7;/^. 

" I A. B. do utterly teftify and declare In my confcience, 

" that the queen's highneis is the only fupreme governor of 

z " this 



Hifioria Placitorum Cor once. 519 



(C 



this realm, and of a]l other her highnefs's dominions and 
countries, as well in all fpiritual or eccleliaftical things or 
caufes, as temporal, and that no forein prince, perfon, 
" prelate, ffcate, or potentate hath or ought to hav^e any ju- 
" rifdi£l:ion, power, liiperiority, preeminence or authority, 
" eccleiiallical or fpiritual within this realm, and therefore 
" I do utterly renounce and forfake all forein jurifdi6lions, 
" powers, fuperiorities and authorities, and do promife, that 
" from henceforth I iliall bear faith and true alligeance to 
" the queen's highnefs, her heirs and lawful fuccelTors, and 
" to my power Ihall ailift and defend all jurifdiflions, privi- 
" leges, preeminences and authorities granted or belonging 
" to the cjueen's highnefs, her heirs and fucceflbrs, or united 
" and annexed to the imperial crown of this realm." So help 
me God and by the contents of this book, (f) 

Every perfon appointed to take the oath, and refuling, fhall 
lofe his offices and benefices, and be difabled to take any 
office or benefice, ^c. and then proceeds to other penalties 
upon refufers. 

And by that a6l It is enabled, " That if any perfon inha- 
" bitiiig within the queen's dominions ffiall by writing, 
" printing, teaching, preaching, exprefs words, deed or a£t 
" advifedly, mahciouily, and dire6lly affirm, hold, ftand 
*' with, fet forth, maintain, or defend the authority, preemi- 
" nence, power or jurifdi6lion fpiritual or eccleliaftical of 
" any forein prince, prelate, perfon, ftate or potentate what- 
" foever, heretofore claimed, ufed or ufurped within this 
" realm, or any dominion or country under the queen's o- 
" beyfance, or Ihall adviledly, malicioufly, and dire6lly put 
" in ure, or execute any thing for the extolling, advance- 
" ment, fetting forth, maintenance, or defenfe of any fuch 
" pretended or ufurped jurifdi£lion, power, preeminence or 
" authority, or any part thereof, every perfon fo offending, 
" his abetters, aiders, procurers and counfellers, being con- 
" vi£led according to the courfe of the common law, fhall 

4P "for 

(/) This oath, and this ftatute fo far as relates to the faid oath, are abrogated 
by I «^: ^ M. cap. 8. 



530 Hifloria P lac it ovum Corona. 



" for the firft oftenfe forfeit his goods and chatties, and, if 
" not worth twenty pounds, lliall aUo fufFer a ye.ir's impri- 
" fonment, and all his ecclehaftical benefices and dignities 
" ihall be void, and for a lecond oftenfe committed after at- 
" tainder of the firft Ihall he within penalty of pr^emmirCf 
" and for the third oftenfe committed after his fecond con- 
" viflion, it ihall be adjudged high treafon. 

None to be impeached for words only, unlefs indi£led 
within a year after the oftenfe committed ; and if imprifon- 
ed, to be fet at liberty, unlefs indi£led within half a year af- 
ter the ofl'enfe : trial of a peer by peers. 

None to be indifted, iffc. without two witnefles, which if 
livincr ftiall be brought fice to face before the prifoner upon 
his arraignment, and teftify what they can fay, if the prifo- 
ner require it. 

Givins; of relief, aid or comfort to offenders fhall not be 
punifliable, unlefs proved by two witnefles, that he had no- 
tice of the oftenfe at the time of fuch relief given. 

... 

5 Eli'^. cap. I . "If any perfon dwelling, inhabiting, or re- 

" iiant within the queen's dominions or under her obeyfance, 
" ftiall by writing, cyphering, printing, preaching, deed or 
" a£i:, advifedly and wittingly hold, or Itand with, to ex- 
** tol, fet forth, maintain or defend the authority, jurifdiftion, 
or power of the biftiop of Rome, or his lee, heretofore 
claimed, ufed, or ufurped within this realm or any domi- 
nion or country under the queen's obeyfance, or by fpeech, 
open atl or deed advitedly and wittingly attribute any fuch 
manner of jurifdiftion, authority, or preeminence to the 
" faid fee or billiop of Rome for the time being within this 
" realm or any the queen's dominions, then every fuch per- 
" fon, their procurers, abetters and counfellers, and alfo 
" their aiders, comforters and afliftants upon the purpofe a- 
" forefaid, to extol the authority of the biihop of Rome, be- 
" ing lawfully convI£led within one year Ihall incur a pr^- 
" immire. 

It direfts who fhall take, and give the oath of fupremacy. 
Any perfon appointed to take this oath by this ftatute or 
the ftatute of i £7/-^. who Iliall refufe to take the fime, being 
5 thereof 



Hijloria Placitorum Coronet. 3^1 

thereof lawfully indi^led within one year, and convid" or at^ 
taint at any time after, Ihall incur a pr^mmire. \6 R.z. 

Certificate of refufal to be made into the king's bench 
within forty days after refufal; the king's bench may proceed 
to indicl the party refufing within a year by a jury of the 
fame county, where the court fits. 

If any perfon convi£l of the offenfes within the firll claufe 
of the Ihtute lliall after convi6lion thereof do the faid of- 
fenfes or any of them, or if any perfon appointed to take 
the oath, do after thtee months after the hrlt tender refufe 
to take the fame being tendred a fecond time, the offender 
lliall fuffer as in cafe of high treafon. 

Attainder of treafon upon this a<3: lliall not make corrupt 
tion of blood, dillierit the heir, or forfeit dower. 

Members of the houfe of commons ftiall take the fald 
oath, otherwife fhall be difabled to lit. 

Temporal lords of parliament fliall not be bound to take 
the oath, nor fubje61: to the penalties for refufing the fame. 

The charitable giving of reafonable alms to an offender 
without fraud or covin fhall not be conftrued an abetting, 
counfelling, aiding, affifling, procuring or comforting of an 
offender within this aft : peers indifted fhall be tried by peers, 
as in other cafes of treafon. 

No perfon compellible to take the oath upon fecond ten- 
der, but fuch as have ecclefiaflical preferments, or fuch as 
have offices in ecclefiaftlcal courts, or fuch as refufe wilfully 
to obferve the orders eftabliflied for divine fervice,. or fuch as 
fliall deprave the rites and ceremonies of the church of Eng- 
iandj or that fhall fay or hear private mafs. 

Not lawful to kill perfon attaint in pramunire. 

No perfon to be indifted for aiding, affiftlng, comforting, 
abetting any perfon for extolling the power of the bllliop of 
Rome, unlets accufed by fuch lawful proof, as fhall be 
thought by the jury fufHcient to prove him guilty of the 
offenle. 

The things obfervable upon this a£l, 

I. Tho the indi£lment for the refufal of the oath upon 
the firfl tender may be in the county, where the king's 

bench 



332. Hiftoria Placitorum Cor once. 

bench fits, yet the trial muft be by a jury of the county where 
the refufal is, 6 iff -] EUz^ Dy. 234. a. Bonner s cafe. 

2. If books extoJIino; the pope's jiirifdi6lion be written be- 
yond feaj and brought in hither, it was ruled by the advice 
of all the judges, 1. The importer, that delivers them out to 
extol the pope's authority. 2. He that reads them, and in 
conference with others allows them to be good. ,3. He that 
hears the contents, and in open fpeech with others commend 
and affirm them to be good. 4. He that hath fuch books in 
his cuftody, and fecretly conveys them to his friends to the 
intent to perfwade them to be of that opinion. 5. He that 
prints fuch books in this realm, and utters them, are within 
the firft claufe of this ftatute againft extolling of papal autho- 
rity ; but thofe that receive and read them without allow- 
ing them in conference, are not within this afl:. 

3. An indiflment againft an aider, isfc. muft be, knowing 
the principal to be a maintainer of the jurifdiftion of the 
pope> and contra formam ftatuti only, is not fufficient. Dy, 
363. a. 

4. Nota this fpecial claufe of giving alms not to make an 
aider or comforter, if the alms be realonable, and without co- 
vin, tho the offender not imprifoned, nor under bail, feems 
to be but agreeable to the common law ; vide qtu fupra diSia 
funt ftiper fiamtum 13 Eli^. cap. i. and therefore it feems, 
even by the common law, if a phyfician or chirurgeon mi- 
nifter help to an offender iick or wounded, tho he know 
him to be an offender, even in treafon, this makes him 
not a traitor, for it is done upon the account of common 
humanity, not intuitu criminis vel criminofi; but it will be 
mifprilion of treafon, if he know it, and do not dlfcover 
him. 

2 3 Eli^. cap. I . " All perfons whatfoever, who ha\''e or 

Ihall have or pretend to have power, or Ihall any way put 

in practice to abfolve, perfwade, or withdraw any of. the 

queen's fubjefts, or any within her dominions from their 

natural obedience to her majefty, or to withdraw them for 

*' that intent from the religion now by her highneis's au- 

J* thority eltablilhed within her highneis's dominions to the 

3 ■ " Romifi 



a 






Hijioria Placitorum Cor once. 532 

«-, ~— ■ — ■ ■ ■ . — 

" Romiffj religion, or to move them or any of them to pfc 
" mite any obedience to any pretended authority of the fee 
" of Rome, or of any other prince, Itate or potentate, to be 
*' had or ufed within her dominions, or Ihall do any overt- 
ait to that intent or purpofe, they ihall be adjudged trai- 
tors ; and the perfons who Ihall be willingly abfolved, or 
withdrawn as aforefaid, or willingly reconciled, or Ihall 
promife obedience to any fuch pretended authority, prince, 
*' ftate, or potentate as aforefaid, they, their procurers and 
*' counfellors thereunto Ihall fuffer as in cafe of hi^h 
" treafon. 

" Aiders and maintainers of the perfons offending, know- 
" ing the fame, or who Ihall conceal fuch offenfe, and not 
within twenty days difclofe the fame to fome juftice of 
peace, ^c. Ihall forfeit as in mifprifion of treafon : ju- 
ftices of peace to have cognifance of offenfes, except trealort 
" and mifprifion of treafon. 

Not a, the words {for that intent) run through the w^hole 
claufe of diflVvading from the religion of the church of Eng" 
land : -vide poflea ftatute 3 Jac. cap. 4. 

The religion ellablillied within the meaning of tills a£l 
feems to be that book of articles mentiond and enjoind to be 
ailented to by all men taking orders by the ftatute of i 3 Eli^. 
cap. 1 2. 

2 3 Eli^. cap. z. " Advifed and malicious fpeakers of fedi- 
" tious or fcandalous tales of the queen of their own ima^i- 
" nation ihall for the firfl oftenie be fet upon the pillory, lofe 
" both ears (or at the offender's cleilioh pay t\^'o hundred 
*' pounds) and fuffer fix months imprifonment. 
' " If any ihall advifediy and with malicious intent report 
" falfe, feditious and flanderous news or tales of the queen of 
" the reporting of another, then to be fet on the pillory and 
lofe one of his ears (unlels he pay two hundred marks) 
and fuffer imprifonment three months ; fecond offenfe af- 
ter a firft conviftion ihall be felony without clergy. 

If any fhall within or without the queen's dominions 
^* advii'edly and with a malicious intent againft the queen de- 
*J vile and write, print, or let forth any book or writing, 
-" ■ 4 (I ^ '■ con- 



it 



334 Hiftoria Placitorum Corojicc, 

^ containing any falfe, feditious or fcandalous matter againft 
" the queen, or to the encouraging, ft ir ring, or moving any 
" infurre6lion or rebellion within the realm or dominions 
** thereof; or if any perfon within or without the realm Ihall 
" adviiedly, and with a malicious intent ngainft the queen 
" procure, or caiife any fuch book or writing to be written, 
" printed, publiihed or fet forth, (the faid ofFenfe not being 
" puniHiable by the ftatute of 25 £. 3. concerning treafon, 
'* or by any other ftatute, whereby an oftenfe is made or de- 
clared treafon) every fuch oftenfe fliall be judged felony 
*' without the benefit of clergy. 

If any perfon either within or without the queen's do- 
minions fliall by ere61:ing a figure, cafting nativities, pro- 
phecying, witchcraft, conjurations, or other like unlawful 
means feek to know, and Ihall fet forth by cxprefs words, 
*' deeds, or writings, how long the queen fliall live, or who 
fliall reign after her, or malicioufly utter any dire£l: proplie- 
" cies to that purpofe, or fliall malicioufly by words, writings 
or printing wifh, will or defire the death or deprivation of 
" the queen, or any thing direftly to the fame effedl, the of^ 
** fender, their aiders, procurers and abetters in or to the faid 
** offenfes fliall fuffer as felons without the benefit of clergy. 

Offenfes made felony by this a£l committed by perfons out 
of the realm fliall be inquired, heard and determined in the 
county, where the king's bench fits, and limits the proof 
and manner of proceeding ; no corruption of blood, lofs of 
dower, or forfeiture of lands longer than during life. 
Two witnefles required to prove words. 
. The a£l of I 'b' 2 P. <^ Af. and i £//;^. concerning fcanda- 
lous words are repeald ; this a£i; to continue only during the 
queen's life. 

Thefe things are obfervable upon this a£l:, 
I . There may be fome words or writings, that confequen- 
tially may be conftrued to ftir up infurreftion, and yet are 
not within the ftatute of 25 £. 3. for this ftatute fuppofes 
fome may be within it, and fome may not. 
^2. That cafting the king's nativity, how long he fliall live, 
who Ihall futceed him, or ufing prophecies to that efte61:, tho 
i done 






Hi (fori a Placitorum Coronae. 33^ 

done malicioufly, or wHliing the king's death, was not treafon 
within the a£t of 25 £. 3. or of any ftatute then in force) 
tho they are great offenfes ; for had they been treafon, this 
ftatute would never have made it only felony, and that only 
during the queen's life. 

27 E//^. cap. I. "If any open invalion or rebellion ihall 
*' be made within her majefty's dominions, or any a£l at* 
tempted tending to the hurt of her majefty's perfon by or 
for any perfon, that ftiall or may pretend tide to the crown 
" after the queen's death, or if any thing ftiaJl be compaffed 
or imagined tending to the hurt of the queen's perfon by 
any perfon or with the privity of any perfon, that ftiall 
" or may pretend title to the crown of this realm, then by 
her majefty's commillion twenty-four privy counfellors and 
lords of parliament at leaft, with the alTiftance of fuch 
judges of the courts of Weflminfter, as the queen Ihall ap- 
point, or the greater number of them, ftiall by virtue of 
*' this 2B: have authority to examine all and every the of^ 
fenfes aforefaid, and all circumftances thereof, and there- 
upon to give fentence or judgment, as upon good proof 
" the matter ftiall appear unto them ; and after fuch fen- 
tence or judgment given, and declaration thereof by her 
majefty's proclamation under the great feal, all fuch per- 
fons, againft whom fuch judgment or fentence ftiall be gi- 
ven or publiftied, Ihall be excluded and diiabled to claim 
" or pretend to have any title to the crown of England. 

And all the queen's fubje6ls may by virtue of this a£t 
and her majefty's dire£lion by all poflible means purfue to 
death every fuch wicked perfon, by whom fuch invafion 
" or wicked a£l: Ihall be attempted, or other thing compaf- 
fed or imagined againft her majelty's perfon, and all their 
aiders, comforters and abetters. 

Provifton is made in cafe the queen fiiould be killed by 
fuch attempt for profecution of the offender, and excluiion 
of the perion offending from fucceihon to the crown, i^^c. 

Nota, this extraordinary commiihon was iffued thus by au- 
thority of parliament in relation t© the queen of Scots^ who 
was by virtue thereof fentenced to death and executed. 

This 



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33^ Hi/loria Placitonim Coron<e. 



This was but a- temporary a£l:, but the precedent of this 
commiflion to fentence and give judgment without a trial by 
jury was the firft of that nature, that I remember to have 
been ilTued by parliament. 

27 EU\. cap. 2. "It lliall not be lawful for any jefuit, fe- 
*' rriinary prieft, or other fuch prieft, deacon, or religious or 
" ecclefiaftical perfon whatfoever being born within this 
realm or other her highncfs's dominions, and made, or- 
dained or profelTed, or to be made, ordained or profefTed 
by any authority or jurifdi£lion derived, challenged or pre- 
tended from the fee of Rome by or of what name, title or 
** degree foever the fame lliall be called or known, to come 
into, be or remain in any part of this realm, or any of 
her highnefs's dominions after the end of forty days, other 
than in fuch fpecial cafes, and upon luch fpecial occaiions 
only, and for fuch time only, as is expreffed in this aft; 
and if he do, then every fuch oftenfe Ihall be high treafon, 
and every fuch perfon as lliall wittingly and willingly re- 
" ceive, relieve, comfort, aid, or maintain any fuch priefl, 
i5''c. being at liberty and out of hold, knowing him to be 
fuch, lliall be guilty of felony without clergy. 

If any of the queen's fubje£ls (not being a jefuit, femi- 
nary prieft, deacon, or religious or ecclefiaftical perfon) be 
brought up in any college or feminary beyond fea, ftiall 
not return within iix months after proclamation in London^ 
" and within two days after hk return before the bifhop of 
the diocefe, or two juftices of the peace fubmit to her ma- 
" jefty's laws, and take the oath of fupremacy, then fuch 
perfon, who lliall otherwife return into this realm or other 
'* the queen's dominions, lliall be adjudged a traitor. 

" Sending relief to any jefuit, feminary prieft, or college 
" of priefts or jefuits beyond the feas, or to one not returning 
** out of fuch college into England, lliall incur a prdmunire. 
• ■ " Every offenfe againft this a£l lliall be tried in the king's 
" bench in the county where it fits, or in any other county, 
'* wliere the oftenfe was committed, or offender apprehended. 
- *' If a jefuit, feminary prieft, i^c. within three days after 
" his arrival in the queen's dominions fubmit to fome arch- 
^- ■■ I • "bilhop, 



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Htjioria Placitorum Coronae. 337 

*' bllliop, biihop, or jiiftice of peacCj and take the oath of 
*' fupremacy, and by writing under his hand profefs to con- 
" tinue obedient to the laws, then he lliall not be fubje6l to 
*' any penalty. 

" Trial of peers in the cafe of treafon, felony, or pr^mu^ 
*' nire to be by peers. 

" Any perfon knowing fuch priefl: to be within the realm 
" contrary to this a6l, and not difcovering it to a juftice of 
" peace, ^c. within twelve days, lliall be fined and impri- 
" loned during the queen's pleafure, and a juftice of peace- 
" to whom luch difcovery is made, not informing one of 
the privy council, il^c. fhall forfeit two hundred marks. 
iCjElii^, cap. 2. " No attainder of treafon that noW is, 
where the party is executed, ifiall be reverled for error. 
25 Eli^. cdp. 2. "A fufpefled jefuit or prieft refuling to 
** anfwer dire£lly upon his examination ihall be imprifoned 
*' for his contempt, Lintil he Ihall make direfl: anfwer. 

And thefe are all the a6ls concerning treafon in the 
queen's time, that I remember, except particular a^ls of at* 
tainder, whereof fome are temporal, fome perpetual. 

In the time of king James, belides the particular a6ts 
touching the treafon of the confpirators of the po\\^der-plot, and 
the trealons of the lords Cobham and Gray, there are fome ge* 
neral claufes touching treafon in the ftatutes of 3 Jac. cap. 4. (^), 
and 5. and among them this fpecial claufe \\'hich enlarged 
the ftatute of 2 ^ JE//^. cap. i . ^7X• 

" If any perfon Ihall upon or beyond the feas, or in any 
" other place within the dominions of the king, his heirs or 
" fuccelTors, put in praflice to abfolve, periwade or with- 
" draw any of the king's fubje£ls from their natural obedi- 
" ence to his majefty, his heirs or fucceffors, or to reconcile 
them to the pope or fee of Rome, or to move any of 
them to promile obedience to any pretended authority of 
the fee of Rome, or any other prince, ftate or potentate, 
then fuch perfons, their procurers, counfellors and aiders, 
and maintainers knowing the lame ihall be adjudged trai- 

4 R " tors. 



Ci. 



(5) The oath of alllgeance appointed to the faid oath, are abrogated by i IF. 
hcrebyi and this Itatute lb fir as relates £^ AL ca^. 8. 



338 Hi (tori a Placitorum Corona. 



a 



" tors, and llkewife the perfons willingly abfolved or with* 
" drawn, ^c. their aiders, abetters, maintainers, ^c. know- 
ing the fame Ihall be adjudged traitors, to be indifled 
and proceeded againft in any county where taken, as if 
the oftenfe were committed in that county. 
This a6l is much more llriflly pend againft fuch offenders, 
than the ftatute of 2 5 E//;^. cap. i . 1 . It extends larger as 
to the place of fuch offenfe. 2. The words {to that intent) 
which bound up the ftatute of 2 3 £//^. more ftri6lly, are here 
omitted. 3. The disjun6live claules in this ftatute have a 
greater latitude. 4. It extends to maintainers of the offen- 
ders knovdng the fame. 

Neither do I find any fpecial new a£l generally touching 
treafon from this time till the 1 3th year of king Charles II. 
I 3 Car. 2. cap. i. 

1 . " If any perfon after 2 4 June 166 \. during the king's 
" life ihall within the realm or without compafs, imagine, 

invent, devife, or intend death or deftrufllon, or any 
bodily harm tending to death or deftruftion, malm, 
wounding, imprifonment, or reiiraint of the perfon of 
" the king, or to deprive or depofe him from the ftyle, 
" honour, or kingly name of the imperial crown of this 
" realm, or of any other his majefty's dominions or coun- 
*' tries, or to levy war againft his majefty within the realm 
or without, or to move or ftir up any foreiner to invade 
this realm, ok any other his majefty's dominions being un- 
der his majefty's obeylance, and luch compaflings, imagina- 
tions, inventions, devices, or intentions, or any of them Ihall 
exprefs, utter, or declare by any printing, writing, preaching, 
or malicious and advifed fpeaking, being legally convlfted 
'' thereof upon the oath of tvs^o lawful and credible wltnefles 
*' upon trial, or otherwife convlcled or attainted by due 
" courfe of law, then every fuch perion Ihall be deemed a 
" traitor, and fuifer and forfeit as in cafes of high treafon. 

2. If any after 24 June 166 \. during his majefty's life 
*' Ihall mallcioully and adviiedly publilh or affirm, that the 
" king is an heretic or papift, or endeavours to introduce po- 
" pery, or malicloufly and adviiedly by writing or fpeaking 

i " fliaU 






Hijioria Placitorum Corona. 339 



« 



Ihall exprefs, publifh, utter or declare any words or things 
" to incite the people to hatred or diflike of his majefty or 
" the eftabliihed government, ihall be difabled to enjoy any 

office or promotion ecrlefiaftical, civil, or military, or other 

employment, than that of peerage, and fuffer fuch firther 

puniihment as may be by law infli6led. 

3. " Any that ihall malicioully and advifedly affirm the 
*' parliament of 3 Nbu i 6a^o. is yet in being, or that there 
*' lies obligation upon any by any oath, engagement or cove-* 
*' nant to endeavour a change of government in church or 
" ftate, or that both or either houfe of parliament have a 
" legillative power without the king, ihall incur the penalty 
" of a pt\^mimire i6 R. 2. 

4. " No perfon to be profecuted for any of the faid of* 
*' fenfes, except treafon, but by order of the king under his 
*' iign manual, or of the council, nor unlefs profecuted Vv-^ithin 
" fix months after the oftenle, and indidfed within three 
*' months after profecution, 

^. " None to be indifted, arraigned, convicled, or con* 
" demned of any of the faid offenles, unlets the offender be 
accufed by two lawful and credible witnefTes upon oath, 
which witnefTes upon his arraignment ihall be brought in 
perfon before the offender face to face, and maintain upon 
oath what they have to fay againft him, unleis the party 
arraigned ihall willingly without violence confefs the i'am.e. 
6. " This ihall not deprive members of parliament of their 
" free debates. 

" Trial by peers : peer convi£led difabled to fit in pariia- 
*' ment till his majefty pardon him. (/;) 

(/') The afts relating to treafon and or " king or queen, or v/ho hsvc at any 

fenfes of that nature, which hare paflcil " time during the late war with rrnncr 

fince our author wrote, may be reduced " horn arms in the (crvice of the Frciicb 

to thefe three heads: i. Such as more " king, or who have fince the i; Fc- 

immediately relate to the king and his " Iriiary itfSS. been in arms under the 

government, i. Such as relate to the " command or in the fervice ot the 

coin. 3. Such as relate to the manner " late king James in Europe^ H-.a!! 

of trials and other proceedings. " return into this kingdom of Evglavdy 

I. As to the firl}, fuch as relate to the " or any other the king's dominiors 

king and his government. " without licence from the king under 

By 9 V/. 5. cap. r. " If any of the " the privy fcal, fuch perfon fliall he ad- 

" king's fubjefls, who have volunrarily " iudged guilty of high treafon. Where 

" gone into Fratxe, or any the French " the offenfe fhall be committed out of 

" king's dominions in Europe be+ore t i " the realm, it may be tried in any 

*' 2)fi:. 1(^88. without licence from the " county. Up»ft 



a 



2/1 
3"f 



o Hijloria Placitorum Corome, 



Upon this a£l thefe things are obfer- 
*ablc, 

1. That this a<5l doth enaft fome trca- 
for.s, which certainly were fo by 25 £.5. 
as bciring arms in the fervice of the 
French Icing during the war with trance, 
which is plainly an adhering to the 
king's enemies; and tho 25 E. 3. fays 
adhering to the king's enemies in the 
rcabiz, yet it immediately adds giving 
them aid and comfort in his realm or 
clfeivhere, Co.'P.C. /. ir. Fatighan's 
cafe, 2 Salk. tf;5. indeed all the treafons 
by this aii are compounded of this old 
treaftin, altho they be new- in form for 
the fake of facilitating the proof In fome 
inftancesj Hil. 2 yJnn. 2^oi!chcr's cafe, 
Slate Tr. Fol.Y. /-. 511. 

2. That a pardon under the great feal 
(after having been in the fervice nf the 
.French king and before returning) of all 
trcafons, i^C. will not amount to a li- 
cence to return, becaufe it is the retuni- 
Imi, which is the treafon punifliable by 
this a£l. 5 Ann. LinAfay's cafe, State 
Tr. Vol. V. /. 528. 

%. That a Scotchman going out of 
Scotland into France (efpecialiy if for- 
merly rcfident in England) after the 
time mentiond in the a(5t, and returning 
into England is withm the words and 
meaning of the aft, even tho he had a 
licence to return into Scotland. Hid. 

4. That a perfon offending againft 
this aft by returning into England may 
be indifted in any county, where he is 
taken, altho it be not the firft Englip 
county into which he came. Ibid. 

5. That this aft is perpetual and ex- 
tends to the king's fucccffors, altho the 
aft fpeak only of the king generally and 
not of his fucceffors, according to the 
refolutiv^n 12 Co. Rep. 109. "oide fu^ra 
^. loa' 

By i; £^ 14-?^' ?• cnp. 3. " The pre- 
" tended prince of JTales is attainted of 
" high treafon, and it is made high 
" treafon for any of the king's fubjefts 
" by letters, mcff^gcs or othcrwile to 
*' hold correfpondence with him or any 
" perfon employed by him, or to remit 
" any money for his ufe knowing the 
" fame. Provides that offenfcs againft 
" this aft committed out of the realm 
*' may be tried in any county. 

By I Ann. cap.i-). " It is made high 
" treafon to attempt by overt aft or deed 
" to deprive or hinder any perfon next 
" in fucccffion to the crown (according 
" to the jimitatiun of the crown by i W. 



" ^ M.fcff. z. cap. 2. and 1 2 TV.-^. cap. 2.) 
" from fucceeding after the deceafe of 
" the queen ; but this fucceflion has 
'" now happily taken place, and thereby 
" put an end to this ftatutc. 

By 5 t^ 4 Ann. cap. 14. " If any fub- 
" jcft, who has voluntarily gone into 
" France fince 4 Alay 1702. or into any 
" the French king's dominions in Eu- 
" rope without licence from the queen, 
" or has fince the faid 4 May born arms 
" in the fervice of the French king, 
*' /ball return into England without lir 
" cence from the queen under her privy 
" feal, he /hall be adjudged guilty of 
" high treafon. 

By 4 Ann. cap. 8. " It is made high 
" treafon for any one malicioufly to af- 
" firm by writing or printing, that the 
" pretended prince of Wales, or any o- 
" ther perfon hath any right to the 
" crown of thefe realms, other than ac- 
" cording to i W. i^ M. and 12 IV. 5. 
" or that the kings of England are not 
" able by authority of parliament to 
*' make laws to bind the defcent, limi- 
" tation, inheritance and government of 
" the crown. To declare the fame thngs 
" by preaching, teaching or advifed 
" fpeaking is made a pramunirc. 

This aft (which is in the main tran- 
fcribcd from 1 3 Eliz. cap. r.) was re-en- 
aftcd upon occafion of the union 6 Ann. 
cap. 7. Upon this flatute Matthews the 
printer was conviftcd and executed for 
printing a pamphlet intituled, Vi,x To- 
piili Vox 'Dei, OBoh. 50. 17x9. at the Old 
Saily. 

By 7 Ann. cap. 4. " It is high treafoii 
" for any otficer of the array or foldier 
" by land or fea to hold correfpondence 
" with any rebel or enemy to her ma- 
" jefty, or to treat with fuch rebel or 
" enemy without her majelly's licence. 

By 7 Ann. cap. zi. " V/hatever is 
" high treafon or mifprlfion of treafon 
" in England, (and none elfc) /hall be 
" high treafon or mifprlfion of treafon 
" in Scotland. 

II. Such as relate to the coin. 

By 8 if/ 9 fK 3. cap. 25,. " Whoever 
" /hall knowingly make or mend, or af- 
" fill in making or mending, or /liall 
" buy or fell, or have in his poflefllon 
" any inih-umeuts proper for the coinage 
" of money, or convey fuch inftruments 
" out of the king's mint, or /hall mark 
" on the edges any coin current or di- 
" mini/licd coin of the kingdom, or any 
" counterfeit coin rcfcmbling the coin of 

"the 



Hijhria Placitoruf/i Cor once. 341 



" the kinj^dom with letters or other 
" marks like to thofc on the edges of 
" money coined in the king's mint, or 
" fhall colour, gild or cafe over any 
" coin refembling the current coin of 
" the kingdom, or any round blanks of 
" bafe metal, ^r. Oiall be guilty of high 
" treafon. No attainder by this a6l /hall 
" work corruption of blood or lofs of dow- 
*' er, nor profecation be for any offenfe 
*' againft the fame, unlefs cofnmcnced 
" within three months after the offenfe 
" committed : '* this a£l was but tem- 
porary. 

But by 7 Ann. cap. 15. it is made per- 
petual, and the time of profecution en- 
larged from three months to fix months 
after t'he offenfe committed. 

III. Such as relate to the manner of 
trials and other proceedings. 

By 7 W. 3. cap. 3. " Every perfon in- • 
" difted for high treafon, whereby cor- 
" ruption of blood may be made, fhall 
" have a true copy of the whole indiit- 
" ment, bur not the names of the wit- 
" neffes, delivered to him five days be- 
" fore his trial, paying for it not exceed- 
" ing five fhillings, and fhall be admit- 
" ted to make his defenfe by counfel, 
" and witneffes on oath, the laid coun- 
" fel not to exceed two, and to be af- 
'' figned by the court, and to have ac- 
" cefs to the prifoner at all feafonabie 
" times. 

" No perfon fliall be indi6led, tried, 
" or attainted but on the oaths of two 
" lawful witneffes, which two witneffes 
'' mufl be to the f.ime treafon," altho 
it be not neceffary they fhould both be 
to the fame overtafl. 

" No profecution to be for any fuch 
" treafon unlefs the party be indifted 
" within three years after the offenfe 
" committed, unlefs It be for a defign 
*' or attempt to affaffinate the king by 
" poifon or otherwife. 

" The prifoner fliall have a copy of 
" the pannel of the jurors two days be- 
" fore his trial, and fhall have like pro- 



cefs to compel the appearance of wit- 
neffes tor him, as is ufually granted for 
witneffes againll him. 
" Ko evidence fhall be given of any 
overt-adl not exprefly laid in the in- 
difrmcnt. 

" No indi(5}mcnt, procefs, ^c. fliall 
be quiaflied tor mif-writing, mif fpel- 
ling, falfe or impropeir Latin^ unlefs 
exception be taken in court before 
any evidence given upon fuch inditl- 
ment, nor fhall any fuch mif-writing, 
'tSc be caufe to Itay judgment after 
cOnviftlon, but fuch judgment may ne- 
verthelcfs be reverfed upon writ of er- 
ror, as before the making this aft. 
" In the trial of a peer or peerefs all 
peers intitled to vote in parliament 
fhall be fummoned twenty days be- 
fore the trial, and every one h 
fummoned and appearing fhall vote 
at fuch trial, firrt: taking the oaths to 
the government, i$c. 
" Provided that this aft fhall not 
extend to impeachments or other pro- 
ceedings in parliament, nor to indift- 
ments of high treafon, nor any pro- 
ceedings thereupon for eounterfeitirig 
his majeily's coin, great feal, privy 
feal, fign manual, or privy fignet. 
By r A7in.^ cap. 9. " In any trial for 
treafon or felony the witneffes for the 
prifoner fhall be upon oath. 
By 7 Ann. cap. zi. " After the deceafe 
of the prefent pretender no attainder 
of treafon fhall work a difherifon of 
the heir, nor affeft any other right, 
fave that of the offender for his natu- 
ral life only, and every perfon indifted 
for high treafon or mifprifion of trea- 
fon fhall have a lifb of the witnefles 
to be produced againft him on his 
trial, and of the jury, mentioning the 
places of their abode, S5c. given to 
him together with the copy of the 
indiftment ten days before his trial 
in the prefence of two credible wit- 
neffes. 



4 



CHAP. 



542- Hifloria Placitorum Cor once.. 



CHAP. XXVI. 

Concerning the judgments in high treafoii 
and the particulars relating thereunto^ 
and to attainders. 



THIS Chapter divides itfelf into thefe particulars : 
I. Touching the perfon againft whom the judgment is 
to be given. 2. By whom it is to be given. 3. What the 
form of the judgment is. 4. What the confequents thereof 
are. 

I. Touching the perfon, againft whom a judgment in trea- 
fon is to be given. 

In antient time, if a man had been flain in open war againft 
the king either in rebellion, or adhering to the king's enemies, 
the king did de fa^o take a forfeiture, fometimes by preient- 
ment in Eyre, fometimes by prefentment in the king's bench, 
and fometimes by inquilition by the efchetor : for this fee 
the whole pleading in the chancery, Clauf. 29 £. 3. M. 2. ^ 4. 
for the coheirs of Robert de Rofs for the manor of Werk. 

But in all other cafes, whether of felony or treafon, if the 
party had died before attainder, tho he were kild in the 
purliiit, Clauf. 26 E. 3. ^. 29. pro Ricardo filio Adce Pcfchall ; 
and U. 16 E. 1. Rot. 27. coram rege. Stiff ex, pro Stephana Nor- 
thuf (a) M. zo^ziE.i. Rot. 4. in dorf. coram regep-o Johanne 

de 

{a) That cafe was thus r 'Richard brother's lands, and alleged, qtiod pr<e- 

lie Northtip'' de Efldene killed Endo de diBus Ricardus ohiit ante iter pnediSIo- 

Shelfhavgre m the re\gv\ oi Henry III. rum jtijltciariorimi, £5f quod fofl mor- 

for which murder he was indifted and tem fuam pofitui fuit iii cxigendis ; 

outlawed upon an exigent awarded a- upon which point the parties joined if- 

gainft him by the juftices itinerant in fue, and in the following Eajler-Ktm 

SiiJJcx anno 5 5 /f. ;. whereupon his lands anno 1 6 Ednv.r. vcneriint piratores, qui 

^'crc fcifed, afterwards, "j;s;. H. 16E.1. diamt fiiper facraaientum fitum, quod 

Stephen, brother and heir of the faid frcediBui Ricardus Northup' de Eft- 

Richard Northup", impleaded the chief dene oliit apud Rothcrfield tn comitatu 

lord of the fee cor cm rcge for his faid pr£di£lo ante pnsdiBtim iter pradiBo- 

4 rtim 



Hijloria Placitonim Corona, 545 

ie Bekingham (^), or tho he died after convi£l:ion and before 
judgment, 7 H 4. 27. ^. there enfued neither attainder nor 
forfeiture of lands. 

But the law was pra6lifed antiently, and It feems continue 
ing to this day, if a traitor or a felon refciie himfelf, or will 
not fubmit to be arrefted and on reiiftance is flain, upon pre- 
fentment thereof he Ihall forfeit his goods and chatties, 3 E. 3. 
Cor one 290, 312. Co. P. C. p. zi*/. for if a perfon be ar- 
raigned for felony or treafon, tho he be acquitted, yet if it 
be found he fled, he forfeits his goods, and this is but in na- 
ture of a prefentment oi fiigam fecit. 

But whether that prefentment be traverfable, xidc Stamf, 
P. C. Lib. III. cap. 21. {c) 

Yet the former practice by degrees greW out of life, for 
in 8 £. 3. xo. a. the judges would not allow an averment, 
that a party died in rebellion or adhering to the king's ene- 
mies, without a record of his convi£lion, for it is poflible he 
might be there againfl: his will. 

But now by the flatute of 2 <f JE. 3 . de proditionikis, which 
requires an attainder by conviction and attainder per gents 
de lour condition, that attainder after death for adhering to the 
king's enemies is oufted. 

And becaufe it might be faid, that an inqueft before the 
efchetor might fatisfy thofe words, the ftatute of 34JS. 3^ 

cap. 1 2. 

HniijuJlitiariormn-.Etidcoconfideratimi cOCoriers fcifcd all his lantis and tene- 

tft, quod pi'£di£ius Steplianus recuperet ments into the king's hands, ac ft idem 

j'eijinam J'uam dc precdttlis terris, ^c. Alanus de morte prcediCia conviEius jii^ 

{b\ This was in the county of Not- ijfct ^ judicium propter hoc fiihiijfet ^ 

tinghatiz ; Alan dc Sckivgbam was ap- but upon a monftravit of jfohu, fon and 

pcald by il-je the wife of Teier de iSy- heir of the faid Alan, the matter came 

Jiyngton' de morte precdi^li viri fui be- to be heard cormn rcji^e, and thereupon 

fore fpccial commiilioners of oyer and in 7l'/«//v-tcrm following, rt7i;;o 21 £/:.r, 

terminer, upon which the fiid Aia/7 '* Rex ex gratia fua conccdit, quod prai- 

was brought before themj and pleaded " di.5tus yobannes filius AUiiti dc Se- 

fc clericiim ejfc, i£ non alibi qnam itz " kingham habcat feifinam dc tcnemen- 

foro ecclejtajlico i;:dc pojfc ant dehere re- *' tis in manu domini regis exiftcntibus,- 

fpondere j and rhcrcupon the f;'.id julli- " falvo jure fuo & hivrcdum fuorum & 

cas Y>rocccicd ex cfj^cio de morte pr^edi&a " aliorum, cum inde loqui voluerinf, 

ivcjuifttionciii capcre, ^ ipfiim Alanum " &c. Et idco pnrceptum eft viceco- 

j>er iiiqtiifirio^icm jlUun ctilp.ihilem inde " miti, quod habere fiiciat pra:di(ao 7"- 

invcaeruntf i^talcm ipfnm prifo7i£ regn " hatini feifinam de pnediciis tencmen- 

de>^iituna^rAmocca/io:!c tncrtii fir,fdiElie " tis in forma prxdifla cum pertinen' 

rcpoiii preccrpcruiit : Jl."-,! died in pri- " tils, &c. 
fon, and after his death the fhcrift" and (c) fol, 183. V* 



544 Hifioria Placitorum Corona. 

cap. I 2. hath in exprefs terrris for the future oufted fuch at- 
tainders or convi6lions after the parties death, at leail in other 
cafes than forfeitures of war, and except forfeitures of old 
times judged after the parties death by prefentment in Eyre, 
or in the king's bench, as of felons of themfelves ; and there- 
fore Jack Cade, who was flain in open rebellion, could not be 
attaint but by aft of parliament, and fo it is recited in the 
a6l of his attainder 2 9 H. 6. cap. i . 

Yet after the ftatute of ^4 £. 3. the earl o{ Salisbury and 
others, who confpired againfl: Henry IV. and levied war againft 
him, and in their flight were taken, had their heads ilricken 
off by thofe, that apprehended them, without any judg- 
ment given againft them, and after their death judgment of 
treafon was given againft them by the king and lords in par- 
liament, Rot. Par. 2 H. 4. n. 30. upon which the heir of the 
earl of Salisbury brought a petition of error, Rot. Par. 1 H. ^. 
part. I. m. 13. and afligned for error among other errors, that 
his anceftor was dead at the time of the judgment given in 
parliament, but yet the judgment was affirmed ; yet after- 
wards Rot. Par. 9^/. 5. ». 19. to avoid all queftions he was 
reftored by a.Q: of parliament. 

Again, no man ought to be attainted of treafon without 
being called to make his defenfe and put to anfwer, which is 
called arrenatio or ad rationem pojitus. 

Clauf. I E. 3 . part, i . m. 21. dorf. Thomas earl of Lamafler 
was condemned to death, as a traitor by Edward II. at PoNte- 
fraB, Henry his brother brought a petition of error in the 
parliament of i £. 3 . upon that judgment, the record was re- 
moved in thefe words. 

" Placita corona: coram domino Edrvardo rege iilio domini 
" regis Edivardi tenta in prxfentia iplius domini regib apud 
" Pontem-fra£lum die lunx proxime ante feftum annuncia- 
" tionis beatse Mari^ virginis anno regni fui quintodecimo. 
" Cum Thomas comes Lancafiri^e captus pro proditionibus, 
homicidiis, incendiis, depredationibus, & aliis diverlis fcloniis 
du6lus eiTet coram ipfo domino rege, przfentibus Edmundo 
comite Kant', Johanne comite Richemund\ Adomaro dr VaUn- 
" cia comite Pembroch\ Johanne de Warenna com' Sun', Ed' 
A ~ ' " mundo 



HiJIoria Placltorum Coronce, 34^ 



mundd com' Arundc!l\ David com' Athol^ Roberto comite de 
Anegjs^ baronibus <v: alils magnatibus regni, dominus rex 
recordatur, qucxi idem Thomas homo Jigeiis ipilus domlni 
regis venit apud Burton liiper Trentam fimiil cum Himjro 
ds Bohim niiper com' Heref\ prodirore regis & rtgni in- 
vento cum vexillis explicatis apud Pontem Biirgi in bello 
contra dominum regem, & ibidem interle£l:o, & Rogero 
Damory proditore adjudicate, &: quibufdam aliis proditori- 
" bus & inimicis regis cS: regni cum vexillis explicatis, 8c ut de 
** guerra hoftiliter reiiftebat & impedivit ipfum dominum re- 
" gem Sz homines Sz familiares iuos per tres dies continuos, 
*' quo minus pontem iXidix villa: de Burton tranfire potue- 
runt, 8cc. — Et unde dominus rex, habito reipeftu ad tanta 
di61i Thom.e comitis facinora, & iniquitates ejus, 8z ejus 
maxlmam Ingratitudinem, nullam habuit caufani ad aliquani 
gratiam eidem Thorns comitl de poenis prxdiftis fuper Ip- 
iuni adjudicatis pardonand' in pr-.tmiflis faciend', quia ta- 
men idem Thomas comes de parentela excellent! & nobilif- 
" iima procreatus eft, dominus rex ob reverentiam diQ:x pa- 
*' rentelx remlttit de gratia lua fpeclali prxdido Thorns co- 
miti cxecutionem duarum poeiiarum adjudicatarum, iicut 
pr^di£lum eft, fcillcet quod idem Thomas comes non tra- 
hatur, neque iufpendatur, fed quod executio tantummodo 
fiat iuper iplum Thomam comitem, quod decapitetur. 
" Thereupon the record being read in prjKfentia domini re- 
gis, procerum & magnatum regni & aliorum in hoc parlia- 
*' mento, he ailigned thele errors : i . Qiiod erratum eft in hoc, 
" quod cum quicunque homo ligeus domini regis pro fedltioni- 
bus, homlcidiis, robberiis, incendiis & aliis feloniis tempore pa- 
ds captus, & in quacunque curia regis duftus fiierit, de hu- 
JLifmodi feclitionibus & aliis feloniis iibi impolitis, per legem 
" & confuetudinem regni arrenari debet, & ad refponiionein 
" poni, & inde per legem 8zc. convlnci, antequam fuerit 
" morti adjudicatus; licet pra2di<£lus Thomas ccmies, homo li- 
^' geus pra:di<^i domini regis patris, &c. tempore pacis cap- 
*' tus, & coram ipfo rege du61us fuit, di£lus dominus rex pa- 
" ter, Szc. recordabatur ipfum Thomam effe culpabilem de fe- 
■" ditionibus & feloniis in prxdidlis recordo & proceiTu con- 

4 T ■ " tentis, 



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'f°< - 1 'l- t^ 



346 Hiftoria Placitorum Corome. 



" tentis, abfque hoc, quod ipfum inde arrenavit feu ad re- 
" iponfionem pofuit, prout moris eft fecundum legem, See. 
,* t^^ iic abique arrenamento & refponiione idem Thomas erro- 
" nice, & contra legem terrx tempore pacis morti extitit adju- 
" dicatus, Unde cum notorium lit & manifcftum, quod totum 
" tempus, quo impolitum liiit eidem comiti pra^dicla mala & 
" facinora in pra^diftis recordo & procelTu contenta leciiTe, 
& etiam tempus, quo captus fuit, & quo didus dominus 
rex pater recordabatur ipfum effe culpabilem, &c. & quo 
morti extitit adjudicatus, fuit tempus pacis, maxime cum 
per totum tempus przcdi£lum cancellaria & alize placea: cu- 
ria: domini regis aperta: fueriint, & in quibus lex cuicun- 
que fiebat, prout fieri confuevit, nee idem dominus rex 
unquam in tempore illo cum vexillis explicatis equitabat, 
pra^di£lus dominus rex pater, &e. in hujufm^odi tempore 
pacis contra ipfum comitem fie recordari non debuit, nee 
" ipfum line arrenamento & refponiione morti adjudicalfe. 
*' Dicit etiam, 2. Qiiod erratum eft in hoc, quod cum 
pra^dicSus Thomas comes fuilTet unus parium & magna- 
tum regni, & in Magna Carta de libertatibus AnglU con- 
tineatur, quod millus liber homo capiatiir, imprifonetur, aut' 
dijfeifiatur de libero tenemento fuo, vel libertatibus^ feu //- 
beris conjuetiidinibiis fuis, aut mlegetur, aut exukt, nee a- 
liquo modo defiruatur, nee dominus rex fuper eum ibity nee 
fiiper eum mittet, nifi per legale judicium parium fuorum, 
vel per legem terr^, prxdiftus Thomas comes per recordum 
regis, ut prxdicStum eft, tempore pacis erronice morti fuit 
" adjudicatus abfque arrenamento leu refponiione, feu le- 
" gali judicio parium fuorum, contra legem, &c. & con- 
" tra tenorem Magna: Carta: pra:di£l»; and therefore, as 
" brother and heir of Thomas, prays, that the judgment 
be annulled, and he reftored to his inheritance, & quia 
infpe£l:is & plenius intelleftis recordo & proceflli pra:- 
diftis, &:e. ob errores pra:di£los & alios in eifdem re- 
cordo & proceffu compertos eonfideratum eft per ipfum 
dominum regem, proceres, magnates & totam communi-f 
" tatem regni in eodem parliamento, quod pr^edi^lum judi- 
'^ cium contra prazdi£lum Thomam comitem redditum, tan- 



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4 ,. qtia.m 



Hiftoria Placitorum Corouce. 347 



" qnam erroneiim, revocetur & adnulletur, &: quod pra:= 
" diftus Henrictts, ut frater & hxres ejufdem Tbonu comitis, 
*' ad hicreditatem fiiam petendam &: habend' debito proccfTii 
*' inde faciend', prout morls ell, admittatur, & habeat brevla 
cancellarla:, & quod juftic', in quorum placeis di£la recor- 
dum & procefllis irrotulantur, eadem recordum & prc- 
celTus irritari faciunt & adnullari, bzc. P. i 5 H. 2. B.R. 
Rot. 6^. <i> Fdjch. 39£. 3. Rot. ^9. coram Rege. 

This notable record, even before the ftatute of 2 5 £. 3 . 
gives us an account of thefe things ; I . That in time of peace 
no man ought to be adjudged to death for treafon, or any 
other oftenfe without being arraigned and put to anfwer. 
2. That regularly, when the king's courts are open, it is a 
time of peace in judgment of law. 3. That no man ought 
to be fentenced to death by the record of the king without 
his legal trial per pares. 4. That in this particular cafe the; 
commons, as well as the king and lords, gave judgment of the 
reverfal. 

jfohn Matravers was attainted of treafon in the parliament 
of 4 JS. 3 . n. 3 . for the death of the earl of Kent, as hath been 
before Ihewn, cap. i i. p.^z. in his abfence. Rot. Pa)'. 21 £.3* 
». 65. dorf. the fame 'John Alatr avers fued in parliament to 
reverfe that judgment, and afligned for error, qil efl adjudge 
ii mart in un parlement tenus a Weftminfter en tabjence de lui, 
nient indite, nient arrayne, ne appell a refpons-, countre le ley de 
realm ^ les ujages approves j he did not prevail in that par- 
liament but Rot. Par. 2 5 £. 3. ». 54 "^ 5 5. he had a reftitu- 
tion by the king confirmed in parliament. 

Roger Mortimer earl of March was condemned for treafon 
for the death of king Edward II. Rot. Par. 4 £. 3. fi.i. his 
coufm and heir Roger Mortimer, Rot. Par. 28 £. 3. ». 9 <y 10. 
brought a petition of error upon that judgment, whereupon 
the record of his attainder was removed into parliament, and 
there entred of record^ and errors afligned j the judgment of 
reverfal is thereupon given in this form. 

" Les queux record & judgment lues & examine in plein 
" parlement le dit Roger colin & heyre de dit counte dit & 
" alledge, qe les record & judgment fufdit font erroynes & 

*' defedive 



il 



348 Hifloria Placitorum Corouce. 

" defeftlve in touts points, ^ noiment en tant conis le dit 
" counte eftolt myfe u mort & dUlierite l:ins mil acciilenient 
" & fans eftre melne en judgment, ou en refpons, dont il 
" prie, qe les record &: judgment avant dits foient revers &: 
" adnulls, & fur ceo ove bone deliberation ed avife ed erant 
leifure per noftre dit feigneur le roy, prelates, prince, & 
dues, countes, &: barons avant dit, il peirt clerement, qe 
mefmes les judgment cS^: records font erroyncs & defedives 
en touts points, par quoi noftre dit feigneur le roy & les 
dits prelates, prince, dues, countes, & barons par accord 
*' des chivalers des countes & des commons repellent, &: 
*' anyentilTent, & pur erroyn & irrit adjuggent \ti, records & 
" judgment fufdits," and reftore 'Roger the petitioner to the 
title of earl of March, and to the lands, i^c. of his grand- 
father. 

But if the party accufed declined his appearance, it is true 
then, that the law of the land is, that he fhould be pro- 
ceeded againll to an outlawry, and may thereby be attainted 
by procefs of outlawry without anfwer, for he declines it by 
his own default. 

And fometimes there was a more compendious way, name- 
ly, the iflliing of a proclamation-writ to appear in a month, 
two, or three in the court of king's bench, or that in default 
thereof the party Ihould be attainted of treafon or Inch other 
offenfe, wherewith he was charged ; and this was frequently 
done by a£l: of parliament in particular cafes, not unlike the 
procefs ena£led in eafe of an alTault upon a member of par- 
liament by the ftatute of 5 H. 4. cap. 6. and \i H.6. cap. 1 1. 

Sometimes the lords houfe did make fuch a direftion, as in 
the cafe of Talbot., Rot. Par. if R.z. mentiond before, p. 26$. 
but it could not be effectual to attaint the party upon his de- 
fault of appearance upon the return of proclamation without 
acl of parliament, or procefs of outlawry. 

Again, as a man could not be attainted of treafon without 
arraignment, if prefent, or procefs of outlawry, if abfent, 
fo neither could he be arraigned without an accufation ; and 
this accufation was of three kinds : i . If he were taken witji 
the mainouer. 2 . By way of appeal. 3 . By way of indi61:ment. 
4 1. In 



Hijtoria Placitorum Corouie. 349 



1 . In antient time, fometimes as well in cafe of treafon, 
as in cafe of felony a man, that was taken cum manu oper^, was 
thereupon arraigned, an inftance we have thereof, T. lO E. 2. 
Rot. 132. Bucks cited before p. 1^6. 

But this is wholly difufed and oufted by the ftatutes of 
5 E. 3. cap. 9. and 2$ E. 3. cap. 4. by which ftatutes none 
lliall be put to anfwer without indictment or prefentment of 
good and lawful men of the neighbourhood. 

2. By appeal, and this was uiual at common law, as ap- 
pears by Britton, cap. zz. but this kind of proceeding by 
appeal in the king's ordinary courts in cafes of treafon hath 
been long difufed, and it feems is wholly, taken away by the 
ftatutes of 5 and 25 £.3. above-mentiond. 

But yet notwithftanding that courie of appeal continued 
ftill in parliament, as appears by feveral inftances, efpecially 
in the great appeal of treafon by the lords appellants in i i 
imd zi R. 2. (d), but by the ftatute of i H.^.cap. 14. all 
appeals in parliament are wholly taken away, and accordingly 
upon reference to the judges upon the impeachment made 
in the lord's houfe by the earl of Briftol againft the earl of 
Clarendon in the prefent parliament, it was refolved and re- 
ported by all the judges, {e) 

But yet that ftatute hath not taken away impeachments 
iDy the houfe of commons in cafes of treafon or other mif- 
demeanors, and therefore tho hnce i H. 4. cap. 1 4. all appeals 
of treafon by particular perfons are taken away, and have 
been wholly difufed, yet impeachments by the commons have 
been ever iince very frequently ufed, becaiife they are rather 
in the nature of grand indiClments, than appeals. 

3. By way of indi£lment, this is the regular and legal 
way of proceeding in caie of treafon. 

And thus far for the perfons againft whom judgment of 
treafon may be given, and the manner of deducing thcni 
unto judgment. 

II. As touching the perfons, by whom judgment of trea- 
fon may be given ; this concerns more efpecially the jurif- 
di£lion of courts ; a word touching it. 

4 U I. Jiiftices 

(d "^^ State Tr. Vol. I. /. 4. CO St^><: Tr- Vol. II. /. 552. 



35*0 Htjloria Placitomm Corona. 

1. Juftlces of peace cannot regularly arraign, try or give 
judgment in cafe of treafon, unleis in fiich cafes, as are by 
fpecial aft of parliament committed to their cognizance, as 
26 K 8. cap. 6. 5 Elizc cap. i. 13 Eli^. cap. 2. 23 Eli^. cap. i. 
and fome others, becaufe their commlffion extends not to it, 
yet they may take examinations touching treafon in order to 
the diicovery thereof and prefervatlon of the peace. 

2. Juftlces of ^'^r and terminer may give judgment in cafe 
of high treafon, for it is exprefly within their commlffion. 

3. Juftlces of gaol-delivery may give judgment in cafe of 
treafon on any perfon in prifon before them, and that is 
proved by the ftatute of i £. 6. cap. 7. and by the conftant 
praftice. 

4. Juftlces of Nifi prius may give judgment in cafe of trer.- 
fon by the ftatute of i 4 H. 6. cap. i . but qu^re, whether it 
be barely by force of that commlffion, or whether it muft 
be by virtue of fome other commlffion. 

5. Juft:ices of the king's bench in the court of king's bench 
may give judgment in cafe of treafon, for it is the higheft 
court of ordinary juftlce, efpecially in criminals. 

6. If a peer be indifted and plead not guilty to his indl£l- 
ment, and is tried by his peers and found guilty, the lord 
fteward commiffionated by the king for that office gives the 
judgment, and orders execution. 

7. If a peer be tried in parliament by the lords, they 
ufually ele£l a perfon to be lord fteward to gather up their 
votes and pronounce the judgment, but for the moft part that 
fteward lo elefted, tho in parliament, is commiffionated by 
the king under his great feal ; but of this more hereafter. 

III. I come to the form of the judgment. 

The judgments in cafe of treafon are of two kinds, vi^. 
the folemn and fevere judgment, and the lefs. 

The iolemn or fevere judgment againft a man convift of 
high treafon is fet down, Co, P. C. p. 21 o. Stamf. Lib. III. 
cap. 19. (/), I H. 7. 24. ^. Stafford^ caie ilf alibi, " Et fuper 
" hoc viiis & per cun»«:i,Jiic intelle6lis omnibus &: fingulis 
" pricmiilis coniideratum eft,"l. Qiiod pricdi£lus R. ufque fur- 
r " cas 



Hi (i aria Placitorum Coronne, 35'i 









cas T. trahatur. 2. Ibidem fufpendatur per collum, & vi- 
viis ad terram profternatiir. 3. Interiora fua extra ven- 
trem luum capiantiir. 4. Ipfbque vivente ig) comburantur, 
" & 5. Caput liium ampiitetur. 6. Qiiodqiie corpus fuum 
" in quatuor partes dividatur. 7. Et quod caput oc quarteria 
" ilia ponantur, ubi dominus rex ea allignare voluerit. 

The king may and often doth difcharge or pardon all the 
puniiliment, except beheading, and in as much as that is 
part of this judgment, it may be executed by the king's fpe- 
cial command, tho the reft be omitted. 

In the cafe of a woman her judgment is to be drawn and 
burnt, as well in high treafon, as petit trcafon, and Ihe is' 
neither handed nor beheaded. 

The lefs folemn judgment is only to he drawn and hanged, 
and this is regularly the judgment in cafe of counterfeiting 
the coin of this kingdom, for that was the judgment in that 
cafe at common law, which was not altered by the ftatute of 
25 E. 3. 7;/'^. " Super quo vifis, Scc. conhderatum eft, quod B. 
ufque furcas de T. trahatur, & ibidem fufpendatur per col- 
lum, quoulque mortuus fuerit. 
But the judgment in that caie alfo for a woman is to bs 
drawn and burnt, 25 £. 3. 85. /». 

And it feems the fame judgment was alfo for importing 
counterfeit coin, and yet that was not treafon at common 
law. 

And the fame judgment was for counterfeiting the great 
or privy feal at common law., as may be eaftly gathered out 
of BraSlon, Lib. III. de Corona^ cap. 3 . but expreily by Fleta, 
Lib. I. cap. 11. Crimen falfi dicitur, cum cjuis accujatus fuerit, 
quod figillurn regis, vel appellatus, quod figillum domini jui de cw 
jus familia fuerit, falfaverit, ^ brevia inde confignaverit, vel 
cartam aliqua;n vel literam ad exlurcdiuionera domini vel alterius 
damnum fie figillaverit, ^ quibus cafibus, fi quis inde convi6iiii 
fuerit, detra^ari meruit i^ fufpendi. 

And accordingly the like judgment hath been given, as in 
cafe of petit trcafon, for counterfgjting the great feal after 

^--^ the 

(g) T'nefc words arc fo materi?.!, that them in the cafe of U'akct, 55 Car. 1, 
the iucioment was revcrfed for w.in: of Sboii'.Ca.'Parl. iz~. i SrJk. 611. 



3^2. Hijloria Placitorum Cor once. 



the ftatute of 25 £. 3. as appears by 2 ff. 4. 25. and the re- 
cord is accordingly {h) ; and tho it is true my lord Cuke faith, 
it is a miftake Co. P.C. p. 1 <). yet I rather think it was a mi- 
flake in my lord Coke, and that the judgment may be given 
either way, vi^. diftrahatur ^ Ju^pendatur, or diflrahamr, fw 
fpendatur ^ dccapitetur. 

In the cafe (/) 1 6 Jac. for counterfeiting the privy fig- 
net, which was made treafon by the ftati^te of i Mar. cap. 6. 
the judgment was the great and folemn judgment of drawing, 
hanging and quartering. 

But fuppofe the judgment were fo in cafe of counterfeit- 
ing the feal, great or privy, yet the queftion is whether the 
fame judgment muft be in thofe new treafons ena£led by 
I i?' 2 P. <c5^ M. cap I 1. for counterfeiting forein coin made 
current by proclamation, and alfo upon the ftatutes of 5 Eli^. 
and 1 8 Eli^. for clipping and wafhing, whether muft they 
have the folemn judgment to be hanged and quartered, or 
only the judgment of petit treafon to be drawn and hanged. 

And herein by Siamf. Lib. III. cap. 1 9. (A), and Co. P.C.p.i'j, 
the judgment is to be the folemn judgment, and not the judg- 
ment to be drawn and hanged, becaufe it is a new treafon 
made by ail of parliament, and therefore muft have the fo- 
lemnity of the great judgment in cafe of high treafon. 

And furely this is regularly true, and therefore in the cafe 
of popifti priefts, and thofe other a£l:s of treafon newly en- 
abled in the queen's time, the judgment is to be drawn, hanged 
and quartered j but it feems to me, that the law is otherwife 
in relation to thofe new treafons ena£led in the time of 
queen Mary and queen Elizabeth relating to coin, and that in 
all thofe cafes the judgment at leaft may be only to be drawn 
and hanged ; and my reafons are, i . Becaufe they are in cog- 
nata materia falfificationis nwneu, and therefore tho they are 
made trealon, yet they are within the verge of the crime 
of falfification of money, and are to be Under the fame pu- 
nilliment. 2. It were unreafonable to think, that the parlia- 
ment ftiould make the counterfeiting of forein coin to have 
a greater kind of punilhment, than the counterfeiting of the 
I coin 

(/^) FLiefafra in voth /. i8i. (j) Rol-a/p/Zs cafe, 2 Rol. Rc^. 5c. (k} f. 182. h. 



Hijtoria Placitorum CoYon£. 3^:5 

tojn of this kingdom, or that clipping Englijb or forein coin 
ihould have a greater punilhment, than counterfeiting cf the 
coin of this kingdom. 3. As the ftatute of 25 £. 3. tho It 
declare as well counterfeiting of money as levying of war to 
be high treafon, yet leaves them under the feverai degrees of 
punilhments proportionable to their nature, and what they 
had before, fo tho thefe ilatutes make thofe to be new trea- 
fons, that were not before, yet in as much as the puniili* 
ments of treafons were not equal, but that concerning coin 
was a punifhment of a lower allay, therefore the fubjefl: mat- 
ter of thofe ads fhall govern the degree of their puniili- 
ment according to that punilliment of treafon, that relates to 
coin. 4. And accordingly in the book of T. 6 Eli^. Dy. 2^0. k 
it is agreed by the juftices, that the punifliment pro tonfunt 
moneu is only to be drawn and hanged, and upon a ftridl 
fearch into the precedents of Newgate from 5 Elr:^. downwards, 
tho fome judgments for clipping be the folemn judgments, 
yet the moft and latelt are only to be drawn and hanged, 
and accordingly it was refolved and done upon great delibera- 
tion lately in the king's bench upon the convidion of two 
Frenchmen for clipping of the king's coin. (/) 

But however it feems, that the judgment either of one kind 
or the other feems not to be erroneous, for hanging and draw- 
ing is part of the folemn judgment, and tho either may be 
perchance warrantable enough, yet certainly the judgment of 
petit treafon in all treafons touching coin is the moft war- 
rantable and fafe. 

IV. I come to confider of the confequents of a judgment 
in treafon* 

If the judgment be given by him, that hath authority, 
and it be erroneous, it was at common law reverfible by writ 
of error; only the ftatute of 29 E/z^. cap. 2. fecures all for- 
mer attainders, where the party is executed, from reverfal by 
writ of error, but meddles not \Vith other attainders, neither 
doth the ftatute of 33 H. H. cap. 2 c. take away writs of er- 
ror upon attainder of treafon, as hath been refolved againft 
the opinion of Stamf. P. C. Lib. III. cap. 1 9. {m), Co. P.C.p.i^\^ 

4 X But 

(/) The tafc of TicUciv and Norman, Rayni. 354. i Ventr. 234, (w) /. 182. V, 



394 Hifloria PI act tor urn Cor on ^e. 

But it is true, that the ftatutes of 26 H. 8. cap. i 3. and 
^ isf 6 E,6. cap. 1 1 . take a\^^ay from a perfon outlawed in 
treafon the advantage of reverfal of an outlawry, becaufe 
the party outlarped was out of the natm, but extends not to 
other ofFenfes. 

The confequents of a judgment in treafon are, i . Corrup- 
tion of blood of the party attaint. 2. Lofs of dotver to his 
wife. 3. Forfeiture to the king of all his lands, goods and 
chatties. 4. Execution, whereof in the next chapter. 



CHAP. XXVII. 

Touching corruption of blood and reflitu- 
tions thereof] lofs of dower, forfeiture 
of goods, and execution. 



TH E Confequence of the judgment in high treafon, pe- 
tit treafon, or felony, is corruption of blood of the party 
attaint ; unlefs it be in fiich fpecial treafons or felonies enabled 
by parliament, wherein it is eipecially provided, that the attain- 
der thereof Ihall make no corruption of blood, as upon the 
ftatutes of 5 and 1 8 JS//^. in treafon for clipping and wafhing 
of coin ; and upon the ftatutes of 2 i Jac. cap. i6. for acknow- 
ledging a recognizance, ^c. in another's name, i Jac. cap. 1 1 . 
for bigamy, and many others. 

If a man be attaint of piracy before commiflioners of oyer 
and terminer grounded upon the ftatute 28 H 8. cap. i 5. by 
indiftment and verdi£l of twelve men according to the courle 
of the common law,, he forfeits his lands and goods by the 
ftatute of 28 H. 8. cap. i 5. but this works no corruption of 
blood, becaufc it is an ofFenfe, Vvhereof the common law 
I takes 



Hijioria Placitorum Cor once. 3<^^ 

takes no notice, and tho it be ena£led, they fhall fufter and 
forfeit as in cafe of felony, yet it alters not the offenfe, Co. P. C. 
cap. 49. jf>. I 12. vide tamm contra Co. Litt. §. 74 T* _/>• 3 9 J« 

If a man be attainted before the admiral of treafon or fe- 
lony committed upon the fea, or before the conftable and 
marlhal for treafon or murder committed beyond the fea, ac- 
cording to the courfe of the civil law, it works no corruption of 
blood, for tho thefe offenfes within the cognizance of the. 
common law are felonies or treafons, yet the manner of the 
trial being according to the courfe of the civil law, the judg- 
ment thereupon, tho capital, corrupts not the blood. 

If there be an attainder of trealon or felony done upon 
the fea upon this ftatute of 28 jF/. 8. by jury, according to 
the courfe of the common law, it feems that the judgment 
thereupon works a corruption of blood, becaufe the commif- 
fion itfelf is under the great feal warranted by a£l: of par- 
liament, and the trial is according to the courfe of the com- 
mon law, and therefore the proceeding and judgment there- 
upon is of the fame effeft, as an attainder of forein treafon 
by commiffion upon the ftatute of 3 5 H. 8. cap. 2. or any 
other attainder by courfe of the common law, and with this 
agrees Co. L/>f. §.74'?. ^. 39i« nay, I think farther, that if 
the Indiflment of piracy before fuch commilTioners upon the 
ftatute of 28 H. 8. be formed as an indiftment of robbery at 
common law, r/^. vi i!f armis i^ fclonice^ i^c. that he might be 
thereupon attainted, and the blood corrupted ; for whatever 
any fay to the contrary, it is out of queftion, that piracy upon 
the ftatute is robbery, and the offenders have been indiftcd, 
convi£led, and executed for it in the king's bench, as for a 
robbery, as I have elfewhere made it evident. 

But indeed, if the indi6lment before thefe commiflioners 
run only according to the ftyle of the civil law, i;/^. piratici 
depr<edavit, then the attainder thereupon upon the ifatute of 
28 H. 8. tho it gives the forfeiture of lands and goods, cor- 
rupts not the blood, and fo are thofe two books of the fam.e 
author, Co. P. C. cap. 49. and Co. Lin. §.745. to be reconci- 
led, which without this diverfity would be contradiilory : 
vide H. I 3 Car. B. R. Hilliar ^ Moore. 

By 



39<J Hifioria Placitorum Cor once. 



By the ftatute of IVefiminfier 2. de donis conditionalihiiSy if 
tenant in tail be attaint of felony or treafon, there is no cor" 
riiption of blood wrought as to the iffue in tail, becaiife the 
very blood, as well as the land, is entailed, and yet for the ad- 
vantage of the iffue there is a corruption of blood, as if the 
tenant in tail alien with warranty and alTets, and then is at- 
tainted, the lien of the warranty is gone, for that lien was 
not entailed. Lin. §• 747* but if the warranty were annexed 
to the gifc in tail, the attainder of the donee doth not deftrov 
the warranty to the iffue, for the warranty is entailed. 

The ftatutes of 16 and 33 H, 8. fubjeft eftates-tail to for- 
feiture by attainder of treafon, and fo the law Ihinds at this 
day notwithftanding the ftatutes of i E. 6. and i Mar. whereof 
before. 

But yet thefe afts are not abfolutely a repeal of the fta- 
tute of donis conditionalibiis, for notwithftanding the forfeiture 
of the lands entailed by the attainder, yet the blood is not 
corrupted as to the iffue in tail. 

And therefore if the fon of the donee in tail be attainted 
of treafon in the life of the father, and die having iffue, and 
then the father dies, the eftate ftiall defcend to the grand- 
child, notwithftanding the father's attainder; but otherwife 
it would have been in caie of a fee-fimple. 3 Co. Rep. Dotvties 
cafe, I o. b. 

In all cafes (but only in cafes of entails as before) attainder 
of treafon or felony corrupts the blood upward and down- 
ward, fo that no perfon, that muft make his derivation of 
defcent to or through the party attaint, can inherit, as if 
there be grandfather, father and fon, the father is attainted, 
and dies in the life of the grandfather, the fon cannot inherit 
the grandfather, {a) 

In cafes of collateral defcents of lands in fee-fimple, if 
there be father and two fons, and the eldeft is attainted in 
the life of the father, and dies without iffue in the life of the 
father, the younger fon fhali inherit the father, for he needs 
not mention his elder brother in the conveying of his title ; 
but if the elder fon attaint furvive the father but a day, and 
I die 

(<i; T>^er 274, 



Hi ft or i a Placitorum Cor once. 397 

die without iffue, the fecond foil cannot inherit, but the land 
lliall efchete -pro defeSiu keredis, for the corruption of blood 
in the elder ion lurviving the father impedes the defcent. 
31 £.1. Barr, 3 i 5. 

But otherwife it is in cafe the eldeft fon had been an 
alien nee, for then notwithftandin* fuch fon alien were living, 
the land will defcend from the father to the youngeft fon 
born a denizen. 

If a man hath two fons and then is attaint of treafon or 
felony, the elder fon purchafeth land and dies without ifTue, 
either in the life-time or after the death of the father, the 
attainder of the father is no impediment of the defcent from 
the brother to the brother. Sir Philip Hobby s cafe, Co. Lift. 8. 

And the fame law is in cafe the father were firft attaint, 
and then had iffue two fons, the elder purchafes lands in fee- 
iimple and dies without ilTue, the younger fhall inherit, for 
tho both derive their blood from the father, yet the defcent 
from the brother to the brother is immediate, and is not 
impeached by the attainder of the father, this tho made a 
doubt, Co. Litt. p. 8. yet was agreed generally by the judges 
in the exchequer-chamber in the cafe of the earl of Holder- 
nejs. (b) 

But if there be two brothers, the elder is attaint and have 
ifliie, and dies in the life of the younger, and then the youn- 
ger die without ilTue, the lands in fee-iimple of the younger 
Ihall not defcend to the nephew, for the attainder of his fa- 
ther is an impediment to the derivation of his defcent. 

And accordingly it is, if the fon of the perfon attaint pur* 
chafe land and die without iffue, it ihall not defcend to his 
uncle, for the attainder of his father corrupted his blood, 
whereby the bridge is broken between the nephew and uncle, 
and the one cannot inherit the other, but the land ihall 
efchete pro defeSiu luredis : vide accordant ruled in Courtney 2 
cafe infra Co. P.C. p. 2^1. 

Thus far for corruption of blood. 

4 Y Touching 

(h) 'P. i6C.tr. i. reported by the nams of CoUingtiiooi and 'Pace, i Sid. ip;. 
I Ve;:. 415. 



398 Hijloria P lac it or urn Cor once. 

Touching reftirutions In blood they are of two kinds, by 
pardon, and by a£l of parliament. 

The king's pardon, tho it doth not reftore the blood, 
yet as to iffues born after it hath the efFe£l of a reftitii- 
tion. 

A. hath ilTue B. a fon, and then is attaint of treafon or fe- 
lony, and then is pardoned and purchafeth land in fee-limple, 
and then hath ifllie C. if A. dies, and B. furvlves, and after 
dies without iffue, yet the land iliall efchete p-o defedu h^re- 
d'tSt for the pardon reftores not the blood between A. and B, 
that was born before ; but if B. had died without iiTue in 
the life of ^. and then A. had died, the land ftiould defcend 
to C becaufe he was not in being while his father's attainder 
flood in force, but was born after the purging of the crime 
and punifhment by the pardon. Co. Litt, §. 747. 

But reftitution of blood in Its true nature and extent can 
only be by a£l of parliament. 

Reftitutions by parliament are of two kinds, one a reftitu- 
tion only in blood, which only removes the corruption there- 
of, but reftores not to the party attaint or his heirs the ma- 
nors or honours lolf by the attainder, unlefs it fpecially ex- 
tend to it; the other is a general reftitution not only in blood, 
but to the lands, i^c. of the party attaint. 

A reftitution In blood may be fpeclal and qualified, but 
generally a reifitution in blood is conf1:rued liberally and ex- 
tenftvely. 

A. hath IlTue B. a fon, and is attaint of treafon and dies, 
B. purchafeth land in fee-iimple, B. by parliament is reftored 
only in blood, and enabled as well as heir to A. as to all 
other collateral and lineal anceftors, provided it fhall not re- 
ftore B. to any of the lands of A. forfeited by the attainder, 
B. dies without IlTue ; it was ruled, that the lands of B. ftiall 
defcend to the fiif ers of A. as aunts and collateral heirs of B. 
1 . Becaufe the corruption of blood by the attainder is removed 
by the reftitution. 2. Altho the words of the s(3: of reftitu- 
tion be to reftore B. only as heir to A. iffc. yet this doth not 
only remove the corruption of blood, and reftore him and his 
Ibeal heirs in blood, but alfo his collateral heirs, and rem.oves 
4 that 



Hijioria Placitorum Corona. 399 

that impediment, which would have hindred the defcent td 
them. Co. P. C. cap. ic6. Courtney's cafe. 

It appears Rot. Pari 2 5 £. 3. '^. 54, 5 5. that John Matr avers, 
that was attainted of treafon in 4 £. 3 . obtaind letters patent 
from the king of reftitution in blood, but it was not effedualj 
and therefore there is enabled a general reftitution as well in 
blood, as to his land by a charter enabled and confirmed in 
parliament, namely by the king with the confent of the 
lords at the petition of the commons. 

II. As to the fecond matter, namely the forfeiture of the 
wife's dower. 

At common law the hufband being attainted of treafon or 
felony the wife iTiould lofe her dower, tho it were dower af- 
iigned ad oflium eccleji^e or ex ajfenfu patris, Co. Litt. §. 4 1 . j>. 3 y. 
ibidem §.747. but not upon attainder of mifprilion of trea- 
fon J but by the ftatute of i E. 6. cap. 1 2. and 5 £. 6. cap. 1 1. 
tho her huiband be attainted of felony or murder, ftie iKall 
not lofe her dower. 

But by attainder of her hufband of higli treafon or petit 
treafon the wife lliall lofe her dower at this day, iinlels in 
cafe of attainders of fuch treafons, where by fpecial provifion 
of parliament the wife's dower is faved, as upon the ftatutes 
of 5 and I B Eli-Zj touching coin. 

But if the hufband feifed in right of the wife hath iitue 
by her, and then the wife commits treafon, and is attainted 
and dies, it feems the hufband ifiall be tenant by the courte- 
fy, otherwife it were, if the treafon were committed before 
ifTue had : vide Co. Litt. §. 3 5« 

III. As to the third thing, namely the forfeitures, that hap- 
pen by attainder j they are of thefe kinds, of lands, or of 
goods and chatties, or of dignities and honours. 

I. As to the forfeiture of lands, generally the lands of 
all perfons attainted of treafon belong to the king, but by 
fpecial privilege they may belong to a fubjeil, as in cafe of 
the bilhop of Durham, i^c. de quo fupra p. 254, ilfc. 

If at common law tenant in tail were attainted of trea- 
fon, or at this day be attainted of felony, tho the inheritance 
neither efchete nor be forfeited, yet the king hath (upon of- 
fice 



3(5o Hifloria Placitorum Corona. 

fice found) the freehold during the hfe of the tenant in tail, 
and not barely a pernancy of profits ; adjudged T. z 9 Eli^. 
Clenches rep. I'enables cafe, and 3 Leon. n. 236. {c) Co. Litt. 
§.747. and the fame law it is for tenant of life attaint. 

But an attainder of treafon or felony of a copyholder gives 
the king no forfeiture, but regularly it belongs to the lord, 
Linlefs fpecial cuftom be to the contrary. 

By the cuftom of Kent^ if the anceftors be attaint of fe- 
lony and executed, yet his lands fhall not efchete but defcend 
to the heir ; but if he be attaint by outlawry, or abjure, they 
are not privileged by the cuftom from efchete. 

But if he be any way attaint of treafon, yet the forfeiture 
thereof belongs to the king notwithftanding that cuftom. 
8 £. 2. Prescription 5 c. Lambert's Ferambulatio Kanti^, p. 551. 

If the tenant hold lands of a common perfon, and com- 
mit treafon and be attaint, yet the forfeiture belongs to the 
king of common right, as a royal efchete ; but if luch per- 
fon commit felony or petit treafon and be attaint, the lands 
efchete to the lord, of whom they Were immediately held, 
only the king iliall have the year, day, and wafte of the te- 
nement fo eicheted for fslony or petit treafon. Stamf. Pr^ro- 
gativa Regis, cap. 1 6. (d) 

The commencement of this year and day is neither from 
the attainder nor from the death of the party attaint, but 
from the time of the inquiiition found, tho the fame be not 
found for many years after the death of the perfon attaint. 
49 E. 3. 1 1. 

If tenant in tail or for life, or the hufband feifed in right 
of his wife be attaint of felony, the king fhall have the year, 
day and waite againft the wife, the ilfue in tail, and him m 
reverfion. Stamf. P. C. Lib. III. cap. 30. (e), 3 £• 3. Coro. 327. 
but of this more hereafter. 

The relation of the forfeiture or efchete of lands for trea- 
fon or felony to avoid all meine incumbrances is to the time 
of the ofFenle committed. 

A. and B. jointenants in fee, A. is attaint of treafon or fe- 
lony and dies, the land furvives to B. but yet fubJ££?: to the 
4 title 

ic) /, i8j. (//) See Mng. Chart, ca^. *a, a Co. Injlit. 3^. (0 i^o- ^' 



Hijioria Placitorum Cor once, 3^1 

title of the forfeiture. H icCWr. Rot. 342. B.R. Harrifon and 
Walden. 

If a man feifed in fee alien, and then be attaint of trea- 
fon or felony by confelTion or abjuration upon an indictment 
fuppoling the felony committed before the alienation, the 
alienee may not only faliify the attainder in the point of the 
time of the felony iuppofed, but alfo in the very point of 
the felony or trealon itielf, and is not concluded by the con* 
feilion of the alienor, tho the alienor himfelf be concluded. 
49 £. 3. 1 1. 7 £. 4. 1. Co. P. C, cap. 104. p. 231. 

But if he be attaint of felony or treafon by verdi6l upon 
an indi£lment, fuppofing the oftenfe before the alienation, 
tho the alienee cannot faliify the attainder by fuppoling there 
was no felony committed, yet he may faliify it as to the 
point of time, r/:^. he may allege contrary to the indift* 
ment, that the felony or treafon was committed after the 
alienation, and not before, Co. P. C. tibi ftipra 3 2 Eli^. Syers 
cafe. 

If a man be indiCled of a felony or treafon fuppofed the 
lit o£ April 2^ Car. and in truth it was committed i Jimii 
24 Car. yet he fhall be convifted notwithftanding that vari- 
ance, for the day is not material ; yet in fuch cafe for the 
avoiding of the danger and trouble, that may enfue by the 
relation of fuch attaitider to the day mentiond in the indict- 
ment, it is fit for the jury to find the true day : -vide Syers 
cale, ubi fupra. 

If a man be outlawed upon an indiClment of felony or 
treafon, and pending the procefs he alien the land, yet the 
king or lord Ihall have the land, which he held at the time 
of the felony committed, for the indictment contains the 
year and day, when it was done, unto which the attainder by 
outlawry relates. 

But if a man fue an appeal by writ of felony or murder, 
and pending it the party aliens, and then is outlawed before 
appearance, the lords eichete is loit, becaufe it relates only 
to the time of the outlawry pronounced, in as much as the writ 
of appeal is general, and contains no certain time of the offenfe 
committed, cited to be adjudged ^ £. 6. Co. Lin. §. ^.fol 13.^. 

A Z " But 



36z Hifloria Placitorum Corona. 

But it feems, that if the defendant had appeared and the 
plaintiff had declared upon his writ, and the defendant had 
been convifl and attaint by verdi6l or confeihon, or if the 
appeal had been by bill, and thereupon the party had been 
outlawed, tho before appearance, the efchete had related to 
the time of the faft committed to avoid mefne incumbrances, 
for in the declaration in the one cafe, and in the bill in the 
other cafe, the year and day of the felony is fet forth. 

Touching forfeiture of goods. 

The goods of a perfon convift of felony or treafon, or 
put in exigent for the fame, or that fled for thele offenfes, 
or that ftands mute, are forfeit to the king. 

But the relation of thefe forfeitures refer not to the time 
of the offenfe committed nor to the time of the flight, but 
only to the convi£i:ion or to the time prefented, or to the 
time of the exigent awarded. 

And therefore an alienation made by the felon or traitor, 
or perfon flying bom fide and without fraud, miefne between 
the oftenfe or the flight, and the convi£lion or prefentment 
of the flight is good, and binds the king, but if fraudulent, 
then it is avoidable by the ftatute of i 3 Eli^. cap. 5. 3 £. 3. 
Cor on. 2C)6. ibidem 7^44. 

If a man commit a felony and be purfued, and in the 
flight be killed, whereby he can neither be indifted nor con- 
vlQ:, yet if this matter be found by inquifition before the 
juftices in eyre or of oyer and terminer, he Ihall forfeit the 
goods he had at the time of the flight, and not thofe only, 
which were his at the time of the inc|uilition found, for there 
it mufl: relate to the flight, becaufe the party is dead, and 
can be no farther proceeded againfl:, 3 £. 3. Coron. z^c, 3 1 2. 

If a party be acquitted of treafon or felony, the jury that 
acquits him ought to enquire of 'his flight for it, and if they 
find he fled, what goods he had, for his goods and chatties 
are thereby forfeited ; but this is but an inqueft of office, 
and therefore is traverfable by the party : vide Stamf. P. C. 
Lib. III. cap. 21. (/) 

I But 

(f) t- 1S5. V. 



Hiftoria Placitorum Cor once, 363 

But upon an inquiiition before the coroner of the death 
of a man fu^er viftim corporis, tho the party accufed be ac- 
quitted, yet if it be prefented, that he fled for it, it is 
doubted whether that inquiiition as to the flight be traverfa- 
ble : vide Stamf. P. C. Lib. III. cap. 1 1 . 

But on all hands it is agreed, that if the coroner upon the 
inqueft/w/7^r -vifiim corporis preient one as guilty, and that he 
fled for it, and the party is arraigned and found not guilty, 
and alfo that he did not fly, yet that doth not avoid the 
flrft inquifltion as to the flight, but the befl: fliall be taken 
for the king, tho both are in the nature of inquefts of oflice. 
zz Aff. 9^. Forfeitures 27. 3 £. 4. Forfeitures 35. H. i 3 H, 4. 
Forfeitures 32. 7 £//:^. Dy. 238. /'. 

A fugnm fecit by the principal or acceflary before in mur- 
der, if the fa6l be prefented before the coroner, entitles the 
king to the goods of the oftender, for thefe are within 
the cognizance of the coroner, but the coroner hath no power 
to enquire of acceflaries after, nor confequently of their 
flight, and therefore a prefentment before the coroner of the 
flight of an acceffary after gives the king no title to the 
goods. 4 H. 7. 18. 

The uiage was always upon a prefentment of homicide 
before the coroner, or of flight for the lame, or upon a con- 
viction of felony by the petit jury, or the finding of a flight 
for the fame, to charge the inqueil: or jury to enquire, what 
goods and chattels he hath, and where they are, and there- 
upon to charge the Viilata where fuch goods are with the 
goods to be anfwerable to the king: ride 3 £• 3. Corone 296". 
<y alibi, vide Itatute 3 i E. 3 . cap. 3 . 

But tho goods of an oftender be not forfeited till the con- 
viftion or flight found by inqueft, yet whether they may be 
feifed upon the offenie committed, hath been controverted. 

I. It feems clear, that at common law if a man had com- 
mitted felony or treaion, or tho poflibly he had committed 
none, yet if he had been indi£led or appeald by an approver, 
the flierift, coroner, or ether ofncer could not feize and 
carry away the goods of the offender or party accufed. 

2. A«^ain> 



3^4 Hip or i a Placitorum Corona. 

2. Again, he could not in that cafe have removed the 
goods out of the cuftody of the offender or party accufed, 
and deliver them over to the conftables or to the Villata to 
anfwcr for them, i 3 Jf. 4. i 3. 

3. But if the party were indi6led or appeald by an appro- 
ver, the fheriff, or other officer might make a fimple feiiure 
of them only to inventory and appraife theili, and leave them 
in the cuftody of the fervants or bailiff of the party indiiled, 
in cafe he would give fecurity againft their being imbezzled, 
or in default thereof he might deliver them to the conftable 
or Villata to be anfwerable for them, but yet fo that the 
party accufed and his family have fufficient out of them for 
their livelihood and maintenance {g\ vi^. Salvis capto ^ fa- 
milU fu£ necejfariis efloneriis fuis, <Sf fi captus conviBus fiierit 
de felonia unde rettatus efl, refiduum honor urn ultra eft over ium iU 
hid regi remanent- BraB. Lib. III. 123. Heta^ Lib. I. cap. i6. 
43 £. 3. 24. 44 Ajf. 1 4. Stamf. P. C. Lib. III. cap. 3 2. Co. P. C. 
228, 229. 

4. And poflibly the fame law was, tho he were not in- 
di6led or appeald, but de fado had committed a felony, but 
with this difference, if he had been indiiled or appeald by 
an approver, this kind of feizure might have been made, 
whether he committed the felony or not 5 for in the books of 
43 JS. 3. and 44 Ajf. there is no averment, that the felony 
was committed, but only that he was thus accufed of record, 
and fo is the book of i 3 H. 4. 1 3 . 

But in cafe there were no indiflment, then it is at the pe- 
ril of him that feifeth, if he committed not the felony, and 
therefore it is iffuable. 

Now touching alterations by the ftatutes after made. 

It feems, that by the ftatute of 5 £. 3. cap.' 9. and the en- 
fuing ftatutes, whereby it is enafled, that no man's goods ihall 
be ieized into the king's hands without indiftment or due 
procefs of law, that it was held, that this kind of feizure of 
the goods of a perfon accufed of felony, tho it be only in 
cuftodiam ^ caufa rei fernand^c^ hath been held unlawful, if 
the perfon were not firft indited, or at leaft appeald by an 
I appro^'^er • 

C§) See State Tr. Vd. IV. /. C\ 5. Sir VA "Parldr.i^ c-Je. 



Hijioria Placitorum Coro/h^. 36*^ 



approver ; and fo the books feem to import of 4 3 £. 3 . 2 4* 
and I 5 H. 4. 1 3. and exprelly my lord Coke, P. C. cap. 103* 
p. 228. 

By the ftatute of 2 ^ £. 3 . cap. 1 4. where a party is in- 
dited of felony, tlie procels direfled by that ilatute is firft 
a capias, and if he be not found a fecond capias together with 
a precept to feize his goods, and if he be not found then, an 
exigent and the goods to be forfeit. 

And this is more than a iimple feizure, fuch as was before 
at common law, for if the party came not in, his goods are 
forfeit upon the award of the exigent ; and if he came in, 
tho his goods be faved, yet there is no dire£lion for deliver- 
ing his goods upon fecurity ; but it feems the fheriff is to 
take them into his cuftody, and yet out of them muft allow 
fufficient for the fuftenance of the prifoner and his family. 

Qiure, whether in the cafe of fuch a feizure a fale for a 
valuable confideration before convitlion and after feizure do 
not bind the king, as it feems it doth in a cafe of feizure and 
delivery to the Villata : -vide ^ Co. Rep. if i. Fleetwood's cafe. 

I'his ftatute extends as well to treafon as to felony, and 
yet it mentions only felony, and therefore at this day the 
exigent goes out upon the fecond Capias returned non inventus, 
as well in treafon, as felony. 

By the ftatute of i R. 3. cap. 3. it is ena£led, " That iiei- 
*' ther llieriflF, ilfc. nor other perfon take or feize the goods 
of any perfon arrefted or imprifoned before he be convi6l 
of the felony according to the law of England, or before 
the goods be otherwife lawfully forfeited, upon pain of 
** forfeiting the double value of the goods fo taken. 

Mr. Stamford thinks this is but In affirmance of the com- 
mon law, only that It gives a penalty, but it feems to be 
fomewhat more than fo, for this prohibits the feizure of the 
goods of a party imprifoned, tho he were alfo indiffed, but 
not yet convi£fed, where unqueftionably the common law al- 
lowed fuch a feizure, as is before declared, if the party or 
his friends did not fecure the forth-coming of the goods, where 
the party was indicted. 

But upon this ftatute thefe things are confiderable. 

5 A i.Whethey 






366 Hiftoria Plac'itonim Corona. 



1. whether it extend to treaion ; it feems it doth, for as 
all treaion is felony and more, lo in a itatute of this nature 
for advancing of juftii'e it feems comprifed in it, for it is 
within the reafon of the law, and vide Co. P. C. p. 228. tho 
I know it was otherwiie held, or at leaft doubted in the cafe 
of Sir Henry Fane, whofe rents were ftopt in the tenants 
hands, and no precept was granted for their delivery, tho 
before conviftion, yea and before the indiclment, tho after 
impriionment 1661. 

2. Whether it extend to a party, that Is at large and out 
of priion, whether indifled or not indi(l:};ed, and as to that, 
I . It feems clearly, that it doth not repeal the ftatute of 2 5 
E,. 3 . cap. 1 4. touching the fecond Capias with a feizure of 
goods. But 2. As to other perfons, that are at large and not 
indi£led, nor procefs, as before, made upon their indiftment, 
it feems to me, that if they fly not, there can be no feizure 
at all made, whether they are indi£led or not, for the ftatute 
did not intend a greater privilege to a party imprifoned for 
an ofFenfe of this nature, than he that is at large. 3. That 
if he be at large and fly for it, yet his goods cannot be feized 
and removed, whether he be indifted or not indifted. 4. That 
if he he indifted and at large, yet the goods cannot be removed, 
but only viewed, appraifed, and Inventoried in the houfe or 
place, where they lie. $. That altho the goods may not be 
removed, becaufe the ftatute now hath taken away that re- 
moval, that was in fome cafes at common law, yet neither 
in cafe of treafon nor in cafe of felony, where the party is at 
large, Is it within the penalty of the ftatute as to the point 
of forfeiture of the double value, for as to that the ftatute is 
penal, but It is within the dire£l:ive and prohibitory part of 
the ftatute, which by an equal conftru6lion and interpretation 
prohibits the thing to be praftifed, and hath altered the law 
as to the removing of the goods of the party before con- 
vI£lion. 

And yet I know not how it comes to pafs, the ufe of feizing 

of the goods of perfons accuied of felony, tho Imprifond or 

not Imprifond, hath fo far obtaind notvvlthftanding this ftatute, 

that it paffeth for law and common practice as well by coni^ables, 

3 Iherifts 



Hi ft or i a Placitonim Corona. 367 

ilierlffs and other the king's officers, as by lords of franchifes, 
that there is nothing more ufual : ride Dahons, Jiiflice of 
Peace, cap. i i o. (h) in affirmation of it, -vi^. that the officer 
may ilill take fiirety, that the goods be not embezzled, and 
for want of fureties may feize and praile them, and then de- 
liver them to the town lafely to be kept, until the prifoner 
be convift or acquit, and cites for it Stamf. 192. 8 Rep. 171. 
and B. Forfeiture 44. 

It feems the opinion therefore of my lord Coke, P. C. cap. 
103. hath truly ftated the law, at leaft as it ftands upon the 
ftatute of I jR. 3. 

1. That before the indi6lment the goods of any perfon 
cannot be fearched, inventoried, nor in any fort feized. 

2. That after indiilment they cannot be feized and re- 
moved, or taken away before convi£lion or attainder ; but 
then it may be faid, to what purpofe may they be fearched 
and inventoried after indi£lment, if they may not be remo- 
ved, but are equally liable to imbezzling as before. 

I think he is not bound to find fureties, neither hath the 
officer at this day any power to remove them in default of 
fureties, and commit them to the vill, but only to inventory 
them and leave them where he found them, (unlefs in cafe 'of 
the fecond Capias, whereof before) for the prifoner or party 
indicted may fell them bona fide ; and if he may do fo, the 
vendee may take them, and the Villata cannot refufe the deli- 
very of them to the vendee, tho the goods had been deliverd 
to them. 

But there is this advantage by the viewing and appraifing, 
that thereby the king is afcertaind what the goods are, and 
may purfue them, that take or embezzle them, by Infor- 
mation, (if the party happen to be convi(9;) and try the pro- 
perty with them, whether they are really fold, or fold only 
fraudulently without valuable confideration to prevent the 
forfeiture, and fo forfeited by the llatute of i 3 £//^. cap, j, 
notwithftanding fuch fraudulent fale. 

IV. Laftly, touching execution of judgments of treafon, 
they are dire6led by the judgment, whereof before. 

There 

(h) New Edit. cap. 16%. f. 558, 



568 Hifloria Placitonim Coronas. 



There be neverthelefs fome things, that accidentaJly hap- 
pen, that fufpend or abate the execution. 

I . Reprieves ex arbhrlo regis vel judicis, the king may by 
command or precept under his great or privy feal, privy iia- 
net, or fign manual, yea by ligniiication under the hand 
of the fecretary of ftate, or at this day by the fubfcription of 
a maftef of requefts, command the reprieve of one con- 
demned of treafon or felony. 

And altho the judge, by whom judgment is given, ought 
to be very cautious in granting a reprieve of one condemned 
for treafon before him, yet he may upon due circumftances 
do it, as well in cafe of treafon, as felony. 

And this reprieve he may grant, and after he hath granted 
it may command execution after the feflions and adjourn- 
ment of the commillion. Dy. 20^. 

There are other reprieves, which are not arbitrary, but quaji 
de jure. 

I . In refpe£l of pregnancy, for tho pregnancy be no plea 
to delay judgment, yet it is a plea to delay execution, and 
therefore whenever any judgment in treafon or felony is gi- 
ven againft a woman^ it is the duty of the judge, before he 
finifli his feffions, to demand of her what fhe can allege why 
execution lliould not be made ; yea in all cafes, where a pri* 
foner attaint is brought into another court, or reprieved to 
another feffions, he ought not to have any award of execu- 
tion againft him, till he be firft demanded, what he can fay, 
why it fliould not be, for poflibly he may have a pardon af^ 
ter judgment, zz Ajf.-ji. 

This plea of pregnancy in retardationem executionis hath 
thefe incidents to it : . i . She muft be with child of a quick 
child. 2. If it be alleged, the judge, before whom it is al- 
leged, muft impanel an inqueft of women ex officio to enquire 
of the truth of her allegation, vi^. whether iKe be with child 
of a quick child, and if they find fhe is, then her execution 
is to be refpited, if not, ftie is to be executed. 

If it be found by the jury of women, that fhe is fo with 

child, fome have uled to command a refpit of her execution 

till a convenient time, for initance a month after her deli- 

\ very. 



Hi Ji or I a Placitorum Corona. 56^9 

very, and then to be executed ; but this feems irregular, for 
llie may have a pardon to plead, and therefore it is to be re- 
fpited till another feflions. ii Jjf. lo. 

If llie have once had the benefit of this reprieve and be 
deliverd, and afterwards be with child again with another 
quick child, llie iliall not have the benefit of a farther refpit 
of the fame judgment for that caufe : quod vide z 3 Jjf. 2. Coroni 
188. 22 E. 3. ibidem 253. 

If the jury of women be miftaken in their verdi£l, and 
find her quick with child, where in truth fhe was not at all 
with child, (as once it happend at Aylesbury) if the next fef- 
iions of gaol-delivery, or oyer and tef miner happen at that di* 
fiance, that it is impolfible by the courfe of nature, that fhe 
could be with child, but flie muft be deiiverd mefne between 
the former feflions and this, as if it were ten months, ilfe. 
file iliall be executed ; but if the fecond fellions happen within 
fuch time after the firft, that by courfe of nature fhe may 
ftlll continue with child, as if it be within the diftance of fix 
months or the like, then fhe fliall continue under the 
firft reprieve till another feflion, nam licet tempus ordinarium 
vitalis fuetus fit pofi 16. vel 18. feptimanas pofi impregnatam, 
tamen in quibufdam citius contingere potefl juxta medicorum 
placita. 

If in truth fke were not. with child with a quick child at 
the time, when the jury gave their verdi6l, but became quick 
after, nay tho flie were not at all with child then, but be- 
came with child before the time of the fecond feflion with a 
quick child, in my opinion fhe fhall have a fecond reprieve 
by reafon of pregnancy, for the advantage that fhe had at 
firfl was not really becaufe of pregnancy, but by a miflake 
of the jury of women, and therefore in favorem prolis fhe 
fliall now have it. 

And therefore, as hath been faid, in all cafes of reprieves 
for pregnancy the judge ought to make a new demand, what 
the prilbner hath to lay, wherefore execution fliould not be 
av.'arded, for the firfl refpite being by a kind of matter of 
record fliall not be determined without a new award of exe- 

5 B cutionj 



i^m-atimmtmmtm 



yjo Hifioria Placitorum Corona, 



cution ; and altho clerks of aflifes enter thofe refpites and 
awards only in a book oi Agenda^ yet regularly they are fup- 
poled to be entred of record, and thefe memorials are war- 
rants for fuch entries, tho de fa^o it be not iifually done. 

Another caiife of regular reprieve is, if mefne between the 
judgment and the award of execution the offender become 
non compos mentis (/), the judge in that cale may both in cafe 
of treaibn and felony fwear a jury to inquire ex officio, whe- 
ther he be really fo, or only feigned or counterfeit; and 
thereupon if it be found that he be really diftrailed, mull 
award a reprieve de jure till another feflions, Co. P. C. p. 4. 
and the ftatute of 3 3 H. 8. cap. 20. that dire£l;ed an execu- 
tion of parties convi6l of treafon notwithitanding infanity 
intervening after judgment is repeald, by 1 isi" 2 P. i^ M. de 
quo fupra j&. 2 ? 3 . 

Now as to the abating of fome parts of the execution in 
cafe of high treafon, as drawing, hanging, evifceration and 
quartering, and leaving the offender only to be beheaded, 
this may be, and ufually is by the king's warrant under his 
great feal, privy feal, yea or his privy fignet, or fign manual, 
as ufually is done in cafe of noblemen or great men falling 
under that judgment, for one part of the judgment, vi^. de- 
collation, and the fubftance of the whole judgment, vi^. the 
death of the party, is performed. 

3 CHAP. 

(i) See Sir ^oh; Hazvla's remarks on the trial of Charles Sate?nttn, State TJ". 
Frf. IV. ^. 104. 



Hijioria Placitnrum Coroiide. 371 



CHAP. XXVIII. 

Touching the crime of mifprifion of trea- 
fon, and felony, fcfr. 

TH O the order propofed In the beginning fhould refer 
mifprifion of treafon to that ferles of ofFenfes, that are 
not capital, yet becaiife this offenfe hath relation to treafon, 
and may be of ufe to explain the nature of it, I Ihall here 
take it into confideration, referring mifprifion in its large and 
comprehenlive nature to its proper place. 
Mifprifion of treafon is of two kinds. 

1 . That which is properly fuch by the common law. 

2. That which is made mifprifion of treafon by a£l of par- 
liament. 

Mifprifion of treafon by the common law is, when a per- 
fon knows of a treafon, tho no party or confenter to it, yet 
conceals it and doth not reveal it in convenient time. 

Tho fome queftion was antiently, whether bare conceal- 
ment of high treafon were treafon, yet that is fettled by the 
ftatute of 5 ^ 5 £. 5. ca^. 1 1. and i ^ 2 P. i^^'M. cap. 10. 
i)i%f that concealment or keeping fecret of high treafon Ihall 
be deemed and taken only mifprifion of treafon, and the of- 
fender therein to fuffer and forfeit, as in cafes of mifprifion 
of treafon, as hath heretofore been ufed ; tho in the time of 
Henry VIII. and 'Edward VI. fome things were made mifpri- 
fion of treafon, that were not fo formerly, yet by the Ita- 
tute of I Mar. cap. i. it is enabled, that nothing be adjudged 
to be treafon, petit treafon, or mifprifion of treafon, but 
what is contained in the ftatute of 25 J5. 3. and altho thac 
ail of 2 5 £. 3 . do not make or declare mifprifion of treafon, 
yet it doth it in efieil by declaring and enadting what is trea- 
fon, which is the matter or fubje6l of mifprifion of treafon, 

tho 



372. Hijloria Placitorum Cor on ^e. 

tho the mirpriuon or concealment thereof be a crime, which 
the common law defines what it is. 

Therefore fince the ftatiite of 2 5 £, 3 . is by the ftatute of 
1 Mar. cap. i. made the ftandard of treafon, it remains to 
be inquired, what lliall be faid the concealment of fuch a 
treafon according to the reaion and rule of the common 

If a man knew of a treafoft, by the old law in BraBons 
time he was bound to reveal it to the king or fome of his 
council within two days, quod fi ad tempus dijjimulaverit ^ 
juhticuerity quafi conjentiens i^ ajfentiens, erit fedu6ior domini 
regis (a) ; but at this day it is but milprifion, if he reveals it 
not as foon as he can to fome judge of aflife, or it feems to 
fome juftice of peace, for tho the crimes of treafon or mif- 
prifion of treafon be not within the commiffion of a juftice 
of peace to hear and determine, yet, as it is a breach of the 
peace, the juftices of peace may take information upon oath 
touching it, and take the examination of the offenders and 
imprifon them, and bind over witneffes and tranfmit thefe 
examinations and informations to the next feffions of gaol-de- 
livery or oyer and terminer to be further proceeded upon, as 
is truly obferved by Mr. Dalton {b\ cap. 90. nay, I have known 
chief juftice Rolls affirm, that juftices of the peace may take 
an indiftment of treafon, tho they cannot determine it, vi^. 
as an information or acculation tending to the prefervation of 
the peace. 

But fome trealbns ena£led by fome ftatutes are limited to 
be heard and determined by them^ as appears in fome of the 
ftatutes before mentiond, ^. 3 50. 

It is faid 3 H. 7. 10. Stamf. 38.^. Dalton, cap.^g. (c), the 
uttering of fafte money known to be falfe is mifprilion ol: 
treafon ; but it is a miftake ; indeed it is a great mifprifion, but 
not mifprilion of treafon, unlefs the utterer know him, that 
counterfeited it, and conceal it, this indeed is mifprilion of 
3 treafon, 

(a) 'BraEi. Lih. III. Ae corona, cap. 3. laft book fays it is mifprifion of treafon, 
{h) New Edit. oaf. 141. f. 4(fo. but the other two only fay it is a mif- 

(c) New Edit. cap. 140. /'.4JZ. This fion. 



Hi/lor i a P/aci forum Coron^e. 373 

treafon, but not the uttering of it, for the money is not the 
traitor, but he that counterfeited it, and his counterfeiting 
is the treafon. 

As all treaions and declarations of treafons between 2 5 £, ?. 
and I Mar. are repeald by i Mar. cap. i. lo confequently all 
mifprilions of any other treafon not containd in 2 5 R 3 . are 
thereby repeald, Coke P. C. p. 24. hath thefe words, Mifprifioh 
of treafon is taken for concealment of high treafon or petit trea^ 
fan, and only of high treafon or petit treafon fpecifed and expref 
fed in the a8: of z^ E. t^. and in the margin, that is of fuch 
treafon high or petit , as is exprejfcd in the a^ of z$ E. ■^. and 
of no other treafon ; and accordingly uttering of counterfeit 
coin was agreed by the court {d) at Newgate, -Angnfl 166 \. to 
be neither treafon nor mifprilion of treafon within the fta- 
tute of 25 jB. 3. but only punilliable with fine and imprifon- 
ment ; ex libra domini Bridgman maniifua fcripto. 

If a fubiequent aft of parliament after i Mar. make a new 
. treafon, the concealment of luch a treafon is certainly mif- 
prifion of treafon for thefe reafons, i . Becaufe mifprilion of 
treafon is not any fubftantive crime of itfelf, but rektiv^e to 
that, which is, or is made treafon, and a kind of neceifary 
confequent and refult from it, as the lliadow follows the fub- 
ftance. 2. And hence it is, that tho the ftatute of 25 E. 3. 
does not by exprefs words ena£l mifprilion of treafon to be 
an offenfe, yet treafons being fettled by that a6l, the ftatute 
of I Mar. cap. i. enafts there fhall be no mifprilion of trea* 
fon but what Is enafted by the ftatute of 2 5 £. 3 . for tho 
that SL&. fpeak not of mifprilion of treafon, yet fettling thofe 
things that are treafon, it doth virtually and confequentially 
make the concealing of any of them mifprilion of treafon j 
but yet farther, when the ad: of i i^ i P. tf M. cap. i o. en- 
a£ls divers new treafons, tho it ena6l nothing to make the 
concealment thereof mifprilion, yet in the provifo above-men- 
tiond it takes notice, that concealment of any of thefe trea- 
fons would be at leaft mifprilion of treafon, and therefore 
provides, that the concealment tliercof iliall not be adjudged 

5 C treafon, 

Cd'j In the cafe of Richard Oliver, Kel. 33, 



374 Hijforia Placitorum Corona. 

treafon, but only mifprifion of treafon, an)^ thing above- 
mentlond to the contrary thereof notwithftanding ; and the 
like claiife is in the above-mentiond ftatiite of 5 <^ 6 E. 6. 
cap. I I. Again, my lord Coke, P. C. cap. 6'). /). 139. fays, As 
in cafe of high treafon, whether the treafon be by the com- 
mon law or flatute, the concealment of it is mifprifion of 
treafon ; fo in cafe of felony, whetljer the felony be by the 
common law or by flatute, the concealment of it is mifpri- 
fion of felony ; fo that certainly, if a felony or a treafon be 
enafted by a new law, the concealment of the former falls 
under the crime of mifprifion of felony, and the latter under 
the crime of mifprifion of treafon, as a confequent of it 
without any fpecial words enabling it to be fo. 

All treafon is mifprilion of treafon and more, and there- 
fore, he that is aflifting to a treafon, may be indifled of mif- 
prifion of treafon, if the king pleafe. Stamf. P. C. 37. b. Co, 
P. C. 36. 2 R. 3. 10. b. 

Altho the ftatute of i <^ 2 P. ^ M. cap. i o. hath as to 
treafons repeald the ftatute of 33 H. 8. cap. 23. for trying 
treafons in one county committed in another, yet it hath 
not repeald the fame ftatute as to the trial of murder and 
mifprilion of treafon, which may yet be tried according to 
the ftatute of 3 3 H 8. cap. 23. 

In cafe of mifprilion of treafon and mifprifion of felony, 
as well as in cale of treafon or felony, or acceffary there- 
unto, a peer of this kingdom lliall be tried by peers, but the 
indi£l:raent is to be by a common grand inqueft. 2 Co. Infl. 49. 

The judgment in cafe of mifprifion of treafon is lofs of 
the profits of his lands during his life, forfeiture of goods, 
and imprifonment during life. 

By what hath been faid touching mifprifion of treafon we 
may eafily colleft what is the crime of mifprifion of felony, 
namely, that it is the concealing of a felony which a man 
.knows, but never confented to, for if he confented, he is ei- 
ther principal or accefTary in the felony, and confequently 
guilty of mifprifion of felony and more. 

The judgment in cafe of mifprilion of felony m cafe the 

concealer be an officer, as Iheriff or bailiff^ ^V. is by the fta- 

I tuts 



Hiftoria Placitoriim Corona, 379 

tute of Wcfiminfi. i . cap. g. (e) imprifonment for a yeju- and 
ranfom at the king's pleafiire j if by a common perfon, it is 
only fine and imprifonment. 

And note once for all, that all tliofe a<9:s of parliament, 

that fpeak of fines or ranfoms at the king's pleafiire, are al- 

wavs interpreted of the king's juftices : -vide Co. Magna Carta fu' 

per flat. Weflminfl. i . cap. 4. in fine (f) ^ f^phts alihi. z R. ^. 

II. a. voluntas regis in curia, not in camera. 

And it feems, that mifpriiion of petit treafon is not ful> 
je6l to the judgment of mifpriiion of high treafon, but only 
is punilliable by fine and imprifonment, as in cafe of mifpri- 
fion of felony. 

II. I come to mifpriiions of treafon fo enabled by a£ls of 
parliament iince i Mar. cap. i . for, as before is obferved, by 
that adl all mifprifions, that by any ftatute made after 25 
£. 3. are either exprefly or confequentially made mifprifions 
of treafon, are repeald and fet afide. 

All afts of parliament, that after i Mar. enabled any thing 
to be high treafon, do confequentially make the concealment 
thereof to be mafprifion of treafon, tho it do not in exprefs 
words ena£l the concealment thereof to be mifprifion of trea- 
fon, as hath been before ftiewn, and the like in cafe of 
felony. 

And confequently thofe a£l:s of parliament, which ena£led 
temporary treafons, as the ftatute of i <y 2 P. <^ M. cap. i o. 
the ad of I £//^. cap. 5. ^c. fo far forth as they are tem- 
porary^ the mifprifions of fuch treafons are alfo temporairy, 
and expire with the afl:, and where the a£ls of treafon are 
perpetual, or being but temporary are made perpetual by 
fome other a61; of parliament, the mifprifion of fuch treafons 
remains fuch, as long as the afl: of parliament making fuch 
treafon continues, or is continued, as upon the ftatutes of 
5 Eli^. and 1 8 Eli^. i Mar. touching counterfeiting of forein 
coin made current by proclamation, or clipping or walliing 
coin. 

And the like is to be faid in all refpe^ls of mifprifion of 
felony made fo by a£l of parliament. 

But 

(c) i Co. Tnjl. 11 1. if) 2 Co. Infi. i6^. 



37^ Hijloria Placitorum Cor once. 

But befides thefe crimes, that are confequentiaJly mifprl- 
lion of treafon^ forrte ofFenfes are made mllprllion of treafon, 
as a kind of fubftantive offenfe, and not confequential upon 
the making of treafdn, but particularly enabled. 

Thofe of that kind, that are perpetual and have continu- 
ance, are as follow : 

1 4 E/z^. ca^. 3 . " They that counterfeit forein coin of gold 
" or filver not permitted to be current in this kingdom, their 
" procurers, aiders, and abetters fliall fufFer, as in cafe ot 
" mifprihon of treafon. 

And note, that in that a<£l: (aiders) are intended of aiders in 
the fa£l, not aiders of their perfons, as receivers and com- 
forters, for, as hath been obferved^. 2 3 6. in fome a£ls of parlia- 
ment aiders being joined with procurers, counfellors and abet- 
ters are intended of thofe, that are aiding to the fail ; but 
in other afts of parliament, where the word aiders is joined 
with maintainers and comforters, it is intended of thofe, that 
are aiders ex pofi faSlo to their perlons ; lee this difference in 
the penning of feveral a£ls of parliament, for the firlt part 
5 £//^. c^. 1 1. 18 Eli^. cap. I. I Mar. fejf. 2. cap. 6. touching 
coin, and for the fecond part this exprefs diftin6l:ion obferved 
I 3 £//':^. cap. 2. touching publifhing of bulls of abfolution, where 
the former kind are enabled to be traitors ; the fecond incur 
a pr^munire j the like 2 3 £//^. cap. i . 

I 3 Eli'Si. cap. 2. "If any bull or abfolution, or inffrument 
of reconciliation to the fee of Rome be offered to any per- 
fon, or if any perfon be moved or perfwaded to be recon- 
ciled, if he conceal the faid offer, motion or perfwafion, 
" and doth not difcover or lignify it by writing or otherwife 
within fix weeks to fome of the privy council, ^c. he fhall 
incur the penalty and forfeiture of mifprifion of treafon, 
and that no perfon lliall be impeached for miiprilion of 
" treafon or any offenfe made treafon by this a£l, other than 
" fuch as are before declared to be in cafe of mifprilion of 
" treafon : " nota, had it not been for this caufe the con- 
cealment generally of any treafon within this a6l had been 
miiprilion of treafon. 

1 . 23 £% 



a 



ti 
<(. 
a 
a 

(C 
iC 

a 



Hijlor'm Placitorum Cor once. 577 

2 3 £//'•;<. cap. I . " All perfons, that lliall put in pra61:Ice to 
abtolve or withdraw the fubjefts of the queen from their 
obedience, or to that end perfwade them from the reli- 
gion here eftablillied, or if any perfon lliall be fo abiolved, 
every fuch perfon, and their counfeliors and procurers 
thereunto, Ihall be adjudged guilty of high treafon. 
" And all perfons, that iliall wittingly be aiders and main- 
tainers of fuch perfon fo offending, or any of them, know- 
ing the fame, or which Ihall conceal any olfenfe aforefaid, 
and not reveal it within twenty days after his knowledge 
thereof to fome juffice of peace, or other higher officer, 
he fhall fuffer and foffeit, as in mifprilion of treafon. 



CHAP. XXIX. 

Concerning petit treafon. 

As at common law there was great uncertainty in high 
treafon, fo there was in petit treafon. 

It is true, that all the petit treafons declared in this fta- 
tute {a) w^ere petit treafons at common law, as for a fervant 
to kill his mafter or miffrefs,. tzJff.-^o. a woman to kill her 
hufband, as appears i$ E. z. Cor one 385. and the judgment 
was the fame at common law in fuch cafes, as now, and the 
lands of him, that was attaint of petit treafon, efcheted to 
the mefne lord, of whom they were held, zz Ajf.49, fo that 
as to thefe things the a£l: of 2 5 £. 3 . was but an affirmance 
of the common law. 

But yet there were certain offenfes, that were petit trea- 
fon at common law, that are reflrained and abrogated by this 
ftatute from being petit treafon. 

(<?) viz. 8 5 E4w. 3. 



378 Hi ft or i a Placitorum Cor once. 

1 5 £. 2. Corone 383. A woman Intending to kill her hiif- 
band beat him fo, that Ihe left him for dead, but yet he re- 
covered, for this attempt the wife had judgment to be burned. 

Fleta, Lib.l. cap. 11. Britton, cap. ^. If the homager or 
fervant falfifv the feal of his lord, or had committed adultery 
with the lord's wife or daughter (/>), it was petit treafon. 

But thefe are taken aWay by this a£l of 25 £. 3. and are 
reduced only to thefe three ranks ; 

I. The fervant killing his mafter or miftrefs. 2. The wife 
killing her hulband. 3. The clergyman killing his prelate 
or fuperior, to whom he owes faith and obedience. 

All petit treafon comes under the name of felony, and a 
pardon of all felonies, where petit treafon is not excepted, at 
common law pardoned petit treafon, and fo at this day doth 
a pardon of murder. 

A man or woman, that commits petit treafon, may be in- 
dicted of murder, but if all felonies, i^c. are pardoned by 
a6l of parliament, wherein there is an exception of murder, 
it feems that a murder, which is a petit treafon alfo, is dif- 
charged and not within the exception, M. 6 i^ -j Eli^. Dyer 

The killing of a mafler or hufband is not petit treafon, 
unlefs it be fuch a killing, as in cafe of another perfon would 
be murder, and therefore upon an indi£lment of petit treafon 
for a fervant killing his mafter, if upon the circumifances of 
the cafe it appear to be a fudden falling out, and the fervanc 
upon a fudden provocation kill his mafter, which, in cafe it 
had been between other perfons, had been only manflaughter, 
the jury may acquit him of petit treafon, and find him 
guilty of manflaughter ; and thus it was once done before me at 
Dorchefter affifes, and another time before juftice Windham at 
Coventry ailifes, tho the indi£lment were for petit treafon. 

If a wife confpire to kill her hufband, or a fervant to kill 

his mafter, and this is done by a ftranger in purfuance of 

3 . that 

{h) Sritton adds, or the nurfes of his fame reafon a pardon of jmirder docs 

children. not include a pardon of fetit treajbn, 

(c) The reafon of this is, becaufe pe- nor can one guilty of fetit treafon be in- 

tit treafon is an offenfe of another fpe- difted of 7niirder. Sec Rex verfus CriJJ/e^ 

ties, 6 Co. Ke^. 13. l>. but then by tha Statelfr. VoL VI. /. 214, 2^5. 



Hifloria Placitorum Corona. 379 

that confpiracy, it is not petit treafon in the fervant or wife, 
becaiiie the principal is only murder, and the being only 
accelTary, where the principal is but murder, cannot be petit 
treafon ; but if the wife and a ferv^ant conlpire the death of 
the hufband, being his mafter, and the fervant effecl it in 
the abfence of the wife, it is petit treafon in the fervant, and 
fhe is accefiary before to the petit treafon, and Ihall accord- 
ingly be indifted and burnt. P. 1 6 £//^. By. ^^z. a. 40 4//] 25. 

If the fervant and a ftranger, or the wife and a ftranger 
confpire to rob the hufband or m.after, and the fervant or 
wife be prefent and hold the candle, [while the hufband or 
mafler is kild*,] the flranger is guilty of murder, and the 
wife or fervant guilty of petit treaton as principal, becaufe 
prefent. i i^f 7^ P. ^ M. Dy.ii?>. a. 

So that the ftatute of 25 £. 3. doth not only extend to the 
party, that aflually commits the offenfe^ but alfo to thofe 
that were procurers, aiders or abetters, fcilicet, if they be 
prefent, they are guilty of petit treafon as principals, if ab- 
lent, vet if the ofFenfe in the principal be petit treafon, the 
ofFenfe in the acceflary before is petit treafon, as accelTary, 
as in Browns cafe, Dy. 332.^. 

If a wife or a fervant intending to poifon or kill a ftran- 
ger, and miffing the blow the wife by miftake kills or poifons 
her hufband, or the ferv^ant his mafter, this, that would have 
been murder, if it had taken effeft againft the ftranger, be- 
comes petit treafon in the death of the hufband or mafter. 
Tlorvd. Com. 47 5. b. Crompt. de pace regis 20. b. and Dalt. cap. 
9 1 . (^) ; fo if he ftioot at J. S. and miffing him kills his ma- 
fter. Ibid. 

If the wife or fervant confpire with a ftranger to kill the 
hufband or mafter, if the \vife or fervant be in the fame 
houfe, where the fa£l is done, tho not in the fame room, 
it is petit treafon in them, and they are principals in law, be- 
caufe in law adjudged to be prefent, when in the fame houfe ; 
but if they had been abfent, then they had been only accefTa- 

ries 

* Thefe words arc not in the MS. and the fenfe plainly requires them, 
but they are in the cafe cited fromSjjvr, {d) Ne'-ju Edit, ca^. 142, /. efix. 



380 Hijlor'ia Placitorum Corona. 

rles before the fa£l to murder. Crompt. de pace regis 21. a. 
Bkchendcns cale. 

If the wife or fervant command one to beat the hufband 
or raafter, and he beat him, whereof he dies, if the wife or 
fervant be in the fame hoiife, it is petit treafon in the wife or 
fervant as principals, but murder in the ftranger. Crompt. lo.b. 
Plorvd. Com. 475. L 

For whatfoever will make a ilian guilty of murder will 
make a woman guilty of petit treafon, if committed upon 
the hulband, or the iervant, if committed upon the mafter. 

Eadem lex mutatis mutandis for an inferior clergyman in re- 
lation to his fuperior. 

But now to defcend to particulars. 

I. A feri^ant killing his mailer. 

Who fhall be faid a fervant or a mafter. 

If the fervant kill his miflrefs or his mailer's wife, this is 
petit treafon within this a£l. 1 9 H. 6'. 47. Plo. Com. 85. b. Co. 
P.C. 20. iiAjf. 30. 

If a fervant, being gone from his mafter, kills him upon a 
grudge, that he conceived againft his mafter, while he was in 
his fervice, which he attempted while his fervant, but was 
difappointed, it is petit treafon. 33 4j/! 7. Plorpd. Com. zSo.a. 
Co. P. C. 20. 

If a child live with his father as a fervant, as if he receive 
wages from him, or meat and drink for his fervice, or be 
bound apprentice to him, and kills his father or mother, this 
is petit treafon at this day. (/) 

But if he receive no wages, nor meat and drink for his 
fervice, or be not bound apprentice to him, but only is his 
fon and not his fervant, and kills his father, this was petit 
treafon at common law. zi £.3. 17. ^. per Thorp (g) \ but 
the better opinion is, that it is not petit treafon at this day, 
becaufe this ilatute of 25 E. 3. ftiall not in this cafe be ex- 
tended by equity: ^uod vide Co. P.C. 20. Lamhart Juftic. 248. 
Crompt. 1 9. b. II. I'he 

(/) 1 Mar. Dalifon 14. majler) for mf e, being abbreviated, (as 

(^) The book fays, he was indifled perhaps it was In the AIS. of the 

for killing his Mere (his nnother) but year-books) may be read either way, tho 

Coke 'P. C. f. 20. fays' it is mifprinted, the laft fecms the moft probable. 

and that it fliould be read tnatjlre^ (,his 3 



Hijioria Placitorum Corona. 581 



II. I'he wife killing her hufband. 

If the hufband kill the wife it is murder, not petit trea- 
fon, becaufe there is fubjeftion due from the wife to the hui'^ 
band, but not c converfo. 

If the wife be divorced from the bufband caup adukerii vel 
feviti^, Ihe is yet a wife within this law, becaufe this dilTolves 
not the vinculum matrimonii by our law, for they may coha- 
bit again, but otherwife it is, if they be divorced caufi con^ 
fanguinitatis or prceeontraSiuSy for then the vinculum is diilblved, 
they are no more hufband and wife. 

If A. be married to B. and durin^ that intermarriacre 
A. marries C. tho C. be as to fome purpofes a wife de faSio, 
yet ihe is not a wife within this law, for the fecond marriage 
was merely void, tho perchance llie may upon circumftances 
be a fervant within the former claufe, if ilie cohabit with A. 
and he find her necefiaries for her fubliftence ; tam^n quaere. 

III. The clergyman killing his prelate, ^c. 

If a clergyman living and beneficed in the diocefe of y^. 
kill the bilhop of that diocefe, it is petit treafon ; but if he 
kill the bilhop of the diocefe of B. it is only murder. 

If a clergyinan hath a benefice in the diocefe of A. and af- 
ter by difpenfation take a benefice in the diocefe of B. if he 
kill the biiliop of one diocefe or the other, it is petit trea- 
fon, for he owes and fwears upon his inftitution canonical 
obedience to the bifiiop of each diocefe. 

If a clergyman beneficed in the diocefe of J. within the 
province of C. kills his metropolitan, it feems it is petit trea- 
fon, tho he be not his immediate fuperior. 

If a clergyman be ordained by the bifhop of A. in ordinem 
diaconi, Jive preshyteri fine titulo^ yet it feems if he kills the 
bilhop it is petit treafon, for he profefleth canonical obedi- 
ence upon his ordination. 

Concerning proceedings in petit treafon. 

In high treafon all are principals, but in petit treafon 
there are principals and acceffaries, as well before, as after. 

If the principal be only murder, as being committed by a 
ftranger, the accelTary cannot be petit treaion, tho Ihe be a 
vviis or fervant. Dy, 33^. Browns cafe ubi fupra. 

5 E But 



38z Hifloria Placitorum Corona:. 

But if the principal be petit treafon, as being committed 
by a wife upon her hufband, or by a fer\^nt upon his m: ftei 
or miftrefs, if the acceifary be of the lame relation, vic^. a 
fervant or wife, the judgment ihall be gi^-en againft the ac« 
ceffary, as in petit treafon ; but if the acceflary, whether be- 
fore or after, be a ftranger, tho fuch ftranger be an accelTary to 
petit treafon, yet the judgment lliall be as in a cafe of felony 
againll the acceffary, i7^. qmd jufpendatur-, for tho he be an 
acceffary to petit treafon, which is the principal, yet fuch ac- 
ceflary being a ftranger is not nor can be guilty of petit trea- 
fon, becaufe a ftranger to the party kild, and neither wife 
nor fervant. 

At common law, and by tlie liatute of 2 5 E. 3 . cap. 4. 
clero;y was allowable in cafe of petit treafon, but not in cafe 
of high treafon ; but now by the ftatute of 2 3 H. 8. cap. i. 
I E. 6. cap. 1 2 . clergy is excluded from petit treafon, as well 
as murder, and in the fame kind. 

If a perfon arraigned of high treafon ftand wilflilly mute, 
he lliall be convi£led as hath been formerly fhewn ; but if 
arraigned of petit treafon, he ftand mute, he lliall have judg- 
ment of peine fort ^ dure. Crompt. ig. b. Co. P.C. 217. 

The judgment of a woman convidl of petit treafon is to 
be burnt (/;), but (by Stamf. P. C. fol. 182. b.) in high treafon to 
be drawn and burnt, unlefs it be in cafe of coin, and then 
only to be burnt, as in cafe of petit treafon. 

But the judgment againft a man convi6l of petit treafon 
is to be draw^n and hanged, trahatur i^ fufpendatur per collum. 

Stamford in P. C. 1 2 2. tells us, that the execution of draw- 
ing is to be upon a hurdle, but 33 ^j(/! 7. Shard juftice com- 
manded, that nothing Ihould be brought, whereupon he Ihould 
be drawn, mes que fans cley ou autre chofe a defouth lui foit trajy 
de chiuaux hors de la fale, ou il avoit judgement, tanque a les 
furc, i^c. but that feverity is difufed ; he is in iuch cafes 
draw^n upon a hurdle to the place of execution. 

And thus far touching petit treafon. 

2 CHAP. 

(^) The judgment of a woman con- drazan and hnrnt. Co. 'P.C. f.zii. and 
viift of petit treafon (or in cafe of coiin) fo Is the conftant praflice. 
is all one as in high treafon, iiiz. to le 



Hi ft or i a Placltorum Cor once. 383 



CHAP. XXX. 

Concerning herefy and apoflacy, and the 
punifiment thereof. 



UNder the general name of herefy there hath been in or- 
dinary fpeech comprehended three forts of crimes : 

1 . Apoflacy, when a chriftian did apoftatize to Paganijm or to 
Judaifm, and the punilhment hereof, as well by the law of 
this kingdom, as by the imperial laws, feems to have been by 
death, namely burning. BraSl. Lib. III. de corona, cap. 9. {a). 
by the imperial law he was fubjeft to lofs of goods. Cod. de 
apoflatis, tit. 7. lege i. but it appears not, whether he were to 
fuffer death, Ibid. 1. 6. unlefs he folicited others to apoftacy (b). 

2. Witchcraft, Sortilegium was by the antient laws of England 
of ecclefiallical cognizance, and upon conviftion thereof with- 
out abjuration, or relapfe after abjuration, was punilhable with 
death by writ de h<eretico comburendo, vide Co. P, C. cap. 6. iff //- 
bros ibi, Extr de lureticis, cap. 8. §. 5. «. (5. ^. Formal herefp ; 
the old popifh canonilts define an heretic to be fuch, qui male 
fentit vel docet defide, de corpore Chrifli, de baptifmate, peccatoriim 
confejfione, matrimonio, vel aliis facramentis ecclefa, isf generali- 
ter, qui de aliquo pr^diBorum vel de articulis fidei aliter pr^edi- 
cat, fentit vel doceat, quam docet fan6la mater ecclefa ; and 
whereas the antient councils and imperial conftitutions grounded 
thereupon kept the bufinefs of herefy within certain bounds 
and defcriptions, as the Manichees, Nefiorians, Eutychians, iffc. 
quod vide in Codice, Lib. I. tit. 5. de hsreticis, /. 5. in the 
edi£l: of Theodofus and Valentinian ; the papal canonifts have 
by ample and general terms extended herefy fo far, and left 
fo much in the difcretion of the ordinary to determine it, 
that there is fcarce any the fmalleft deviation from them, 
but it may be reduced to herefy according to the great gene- 
rality, 

(a) /. 123. If. {h) Then it was capital, Lih. I. Cod. tit. 7. /. 5, 



384 Hifioria Placitorum Coronac. 

raliry, latitude, and extent of their definitions and defcrip- 
tions, whereof fee the glofs of Lindwood in timlo de H,creticis, 
cap. I . Revere ndijjlm^ ad verbiim dccLircntiir : the definition of 
Qroflead, tho fonie\vhat general, is much more reafonable as 
we have it given by Mr. Fox^ A^rs iff Mon. pan. i. />. 420. 
Efi fententia humano fenfu cle^a, palam do^a, pertinaciter de- 
fenfa ; but of this more hereafter. 

In this bulinefs of herefy, and the puniihment thereof, I 
fhall, as near as I can, ufe this method : i. I will confider in 
general who is the judge of herefy according to the common 
and imperial law. 2. Who fhall be faid an heretic accord- 
ing to thofe laws. 3 . What the puniiliment of an heretic is 
according to thofe laws : then I lliall confider more fpecially, 
ri^. I . What was the method of the convidion of herefy ac- 
cording to the antient law ufed in England before the times of 
Richard 11. and Henry IV. And 2. What was the ufual pu- 
niihment of herefy here in England before the time of Ri" 
chard II. and Henry IV. 3 . I iKall give an account touching 
the proceeding againil heretics from the beginning of Ri^ 
chard II. to the twenty-fifth year of king F<?«r)' VIII. 4. What 
is the method of proceeding, and how the law touching here- 
fy, heretics, and their punifhment from 25 H 8. until the 
firft year of queen Elizabeth. 5. How the law flood from 
I Eli^, to this day touching this matter. 

I. According to the common and imperial law, and gene- 
rally by other laws in kingdoms and ftates, where the canon 
law obtained, the ecclefiaftical judge was the judge of here-^ 
lies, and hereby they obtained a large jurii'diflion touching it, 
io that there was fcarce any thing, wherein a man diffented 
from the do£lrine or pra6lice of the Roman church, but they 
took the liberty to determine heretical, qui a reBo tramite, 
iff judicio ecclefu cathoUc^e deteSius fuerit deviare, iff is qui dw- 
hitat de fide catbolica, yea even, qui dejpicit iff negligit Jervare 
ea, qU'6 Romana ecclejia flatuit vcl jervare deer ever at : vide 
Lindrvood de hccreticis in cap. Reverendillnnje ad verbum deda- 
rentur, which left an exctlhve arbitrary latitude in the eccle- 
fiaftical ji-icge, and a great fervitude and uncertainty upon 
men fuljtdt to their cenfures : the ecclefiaftical judge was ei- 
2 ther 



Hijioria Placitorum Cor once. 38^ 

ther extraordinary, -vhc certain inquilitors thereunto deputed 
by the pope, or ordinary, which was the bilhop of the dio- 
cefe, as appears by Lindivood de hccreticis, cap. finaHter ijerb. or- 
dinarlus in glojfa ; (^) only for the more folemnity of the bufi- 
nefs of degradation, which accompanied the fentence of herefy 
upon one in orders, before the oftender was left to the fecular 
power, there were fix, but afterwards three biihops to be pre- 
lent in degradation a jacris ordinikis, vi^. the epifcopal, Pre/' 
byteratus, Diaconatus iy Jubdiaconntus, but in minoribus ordinibus 
there was only required the billiOp and his chapter, canonici 
Jive ciericiy 6 decretal, cap. 2. afterward the buiinefs of de- 
gradation was reduced to pne biiliop, vi^. the ordinary of the 
place, fo far at leaft as the fame refpedled the ordo Presbjyiera- 
tus and inferior orders. 

But I do not find, that by the canon or civil law the decla- 
ratory fentence of herefy was neceflary in a provincial fy- 
nod, tho in great cafes, efpecially where a prieft was to be 
degraded, it was moft commonly done in a provincial fynodj 
partly for the greater folemnity of the bufinefs, and partly 
becaufe in luch lynods more biihops and others of the clergy 
were prefent ; but how the ule was in England we Ihall here- 
after fee. 

II. As to the fecond, touching heretics and their difcrimi- 
nations according to the canon law, they may be diitinguilhed 
into three ranks: i. Simplex h.ereticiis. 2. H^reticus contu- 
max. 5. KsreticHs relapjus. 

I. A fimple heretic was fuch, as held an heretical opinioiij 
but being convened before the ordinary, and the opinion being 
fubftantially declared lieretical, and the party convi£led there- 
of, declares his penitence and abjures his opinion, in this 
cafe he was dlfmifled without farther puniihmenr, and this 
abjuration might be required by the ordinary, and was of 
two kinds, vi^i. a fpecial abjuration, whereby he abjured that 
fingle heretical opinion, for which he was condemned, or a 
general abjuration, whereby he renounced all heretical opi- 
nions ; lide Lindivood de Hsreticis, cap. Reverendillimai verb. 
mil reiipiicant & abjuraverint in forma ecclefije confueta : and 

5 F this 

(*) See alfo Liiid''xood de hiercticis ca^. item quia vcrl. ordinurii. 



\S6 Hijloria Placitorum Coronas. 



this abjuration might be required- not only of thofe, that 
were detefted and convi6led of herefy, but e\'en of thofe, that 
were gravitcr fufpefti ; and if they reliifed it, rliey proceeded 
to fentence them as convi£l : Ext?-' de Ikreticis^ cap. ud abo- 
lendam. 

2. A contumacious heretic was among them of two kinds: 
I. Such as refilled to appear before the ordinary, being ac- 
cufed of herefy, and thereupon were duly excommunicate, 
and fo continued excommunicate for one ^'ear, mm velut Ju- 
rcticiii condemnetur, and was tliereupon deliverd or left to 
the fecular power, de h^reticis^ cap. 7. cum contumacia in 6 to 
^c. 2. Where the party accufed of herefy was convidl: 
by teftimony or his own confellion, and refufed to repent 
and abjure, fuch a one might thereupon be fentenced as an 
heretic, and deliverd over to the fecular power, but yet he 
had this favour or privilege, if even after fuch fentence he 
willingly repented and abjured, the ordinary ought to accept 
thereof, and not deliver him over to the fecular power, but 
he was fpared. Lindrvood de H^reticis, cap. Re\^erendil]im2e verl^. 
relipifcant, ^ Extr de H^reticis, cap. ad abolend. verb, fponte 
recurrere ; but then the ordinary might detain him in prifon : 
vide accordant i Mar. Br. Herefy. 

5. A relapled heretic : and herein they diftinguifli betvi^cn 
fi5li relapfus, i^ verc relapjus : Lindrvood de Hxreticis cap. item 
quia, verh. relapfo ; i . The former is where a man is accufed 
of herefy, and is under a great lufpicion thereof, but not 
conviSed, only the ordinary puts him to abjure, which ac- 
cordingly he doth, and afterwards doth entertain, vifit, or 
comfort heretics, fuch a perfon by the canon law may be fen- 
tenced as an heretic relapfed, and deliverd over to the fecu- 
lar power, but yet the ordinary may, as before, detain him 
in prilbn without aftual delivering of him over to the fecu- 
lar judge to be executed. Lindrvood iibi fupra, iff in 6to decre- 
tal, cap. 8. Accujat' de h^reticis. 2. Fere relapfus is, when a 
man being convi£led of herefy, and abjuring again falls into 
herefy, if he be thereupon convi61:ed and fentenced, there 
can be no fufpeniion of the fentence by the ordinarj^, tho 
the party repent and conform, but he mufl: be deliverd over 
2 ) to 



Hifioria Placitorum Corona. 387 

to the feciilar power, and the lentence ought to be given, 
and is not by any means to be fuipended from execution : 
6to de KcveticiSy cap. 4. 

But this relapiing is of two kinds according to the quality 
cf his abjuration : if the abjuration be general of all herelies, 
if he after fall into any herefy, either that, \vhereof he was 
formerly accufed and convi£led, or any other, he is to be fen^ 
tenced as a relapfed heretic ; but if the abjuration be only 
fpecial of that herefy, whereof he is accufed, then he is not 
to be fentenced, as a relapled heretic, unlefs he after fall 
again into the fame herefy, which he fo fpecially abjured ; 
but herein there is fome difference among the doftors, for fome 
think even after a fpecial abjuration of one particular herefy, 
if he fall into another herefy, cenjetur relapfus : vide Extr. de 
Hiveticis^ cap.Accujat. §. 2. Bum vero in 6 to i^ Li.ndivood de hxre-* 
ticisj cap. Item quia -verho fimpliciter in glojja : but the ordinary 
may put this out of queff ion, for it feems by the canon law 
he may at his pleafure in cafes of herefy require a general 
abjuration, vii^. de hicrefi gencraliter ^ fimpliciter. 

III. Now as to the punifliment itfelf of herefy, efpecially 
of thofe, that are either contumaces, or relapfi : i. By the civil 
law; it is true, that the convitlion and fentencing of heretics 
is as well thereby, as by the canon law, left to the ecclelia- 
ftical judge, fo that without a declaration or fentence of the 
ecckfiaftical judge the civil jurifdiclion cannot proceed to in- 
fli£l any punilhment. Lindwood de lureticis, cap. Reverendiffimjs 
verb, confifcata in glojp, tho confifcation of goods of the here- 
tic followed upon his convidlion, neceffaria tarn en efl fententia 
declarativa judicis fiiper ipja conjifcatione, i5f luc fententia fieri fo' 
lummodo debet per judicem ecclefiafiicunt, iff non per judicem fie- 
cularem : vide in 6to de htereticis, cap. fecundum leges. 

But tho the decifion and judicial fentence of herefy was 
belonging only to the ecclefiailical judge, yet the civil conili- 
tutions of emperors and princes did inl"l:itute and enacl feve- 
xA penalties, as confequential upon fuch fentence, fuch as 
were conhfcatlon of goods, difherifon of heirs, and in fome 
<:?i;es deach, as we Ihall lee hereafter : quod vide in Codicc, 
Lib. I. tit. 5. de fMreticis per totim, 

M 



388 Hijloria Placitorum Cor on 



1 .p 



As to the penalty of death, iihimum Jupplicmm : it llioiild 
feem the antient imperial conllitutions made a difterence be- 
tween herelies in relation to that punilliment : it appears by 
the edict oi Theodofms, Co dice, cap. 4. the Manic bees and i3i>- 
natifis were pimilhed with deatii, and poiiibly io w^re the 
Ne/lorians, ibidem cap. 6. and generally all heretics, that dedu- 
ced the orthodox to rebaptization, ibid. cap. 23. many other 
heretics were under milder lentences, iome were puniflied 
with exile, fome with extermination from the city, Iome 
with pecuniary mulils, and fome with confifcation, wdiich, it 
feems, was the moil iilual piinilhm.ent : but it leeras, that by 
the conftitution of the emperor Frederic ^ (which yet is not 
extant) Hodie indiftincte illi, qui per judicem ecclefiaflicum fimt 
damnati de kcrefi^ quales junt pertinaces ilf relapji, qui non petunt 
mfericordiam ante jententiam, junt damnandi ad mortem per f^- 
cuUres poteflates, ^ per eas debent comburi feu igne cremari. 
Lindtpood de hjreticis, cap. Reverendillimss verb, poenas ; and 
from this conftitution of Frederic the courfe of burning gene- 
rally all heretics indiftin£lly, if pertinacious or relapfed, took 
its rife. 

Now as to the penalties by the canon law, it is true they 
go no farther than eccleiiaftical ceniures, injun£lion of pe- 
nance, excommunication, and deprivation of ecclefiaftical be- 
nefices ; but yet they made bold by iome of their confticu- 
tions to proceed farther, and indeed farther than they had 
authority ; luch were among others imprifonm^ent by the or- 
dinary, and confifcation of goods (c), but whether they ad- 
ventured hereupon only in fubiervience to civil conflitutions, 
or w^hether by their own pretended power, may be doubtful ; 
but howfoever, it is fo decreed in their canons and conftitii- 
tions : vide Lindwood de h^reticis cap. Re\'erendillmia3 verb, 
confifcata, i^ ibidem Item quia verb, fententialiter. 

But indeed as to the inflicling of death upon heretics, their 

canons go not fo far as that ; neither indeed need they, for 

emperors and princes being induced by them to ena6l fuch fe- 

vere conflitutions, they did in efFe£l the bufinefs by lentencinE^ 

2 the 

(f) For in Eiiglcnd before the flatute were forfeited by t?. convi6lion for here* 
of 2 H. 5. f^/. 7. neither lands nor goods fy. 5 Co. Ii/Jlit. 45. 



Hijioria Placitorum Cor on i^. 389 

the heretic, and then leaving him to the fecular power, fo 
that the fecular power Was only in nature of their executioner; 
and altho they dire6l in fome cafes of treafon an interceffion 
to be made to the fecular power to fpare the life of the of- 
fender thus committed over to the lecular power, Extu de 
icrhoYum jignijicatione cap. Novlmus, yet we find no fuch cur- 
tefy for heretics, but the princes, that do not effe61:ually pro- 
ceed according to the utmoft of their power to eradicate them, 
are threatned with excommunication, and accordingly they are 
required to take an oatli to perform It, Extr. de iMreticis cap. 
Ad abolendam. {^) 

Therefore as to the punllliment of heretics with death, of 
an heretic fo declared by the bllliop, it was left to the fecu- 
lar power with this difference, if the perfon convlfted were 
a layman, he was Immediately after his fentence to be deli- 
xtrA to the fecular power to be burnt ; but if he Were a 
clergyman within the greater or lefler orders, he was firft fo- 
lemnly degraded, beginning with the chlefeft order he had, as 
that of priefthood, and fo to the loweft, damnati per ecclefiam 
judici futilari relinquentur animadverfione debit a pimiendi, cleri- 
CIS a juis ordinihus primb dcgradatis, Extr. de kereticis, cap. Ex- 
communicamus ; (l) the folemnity whereof fee at large In 6to 
decretal, depixnis cap. Degradatio, Fox's a6is and monuments part i . 
p. 61^. the degradation o£ William Sawtre. 

This degradation by the latter canons might be by one bi- 
fhop, tho formerly it required more. 

When the ientence was given by the ordinary, and the of^ 
fender thus left to the fecular power, he was deliverd over 
to the lay-oiHcer, and then a mandate or writ iffued from 
the chief magistrate to execute the offender according to the 
fecular law ; but of this more particularly hereafter. 

I have been the longer in thefe particulars, that we thereby 
may obferve thefe two things : i . How miferable the fervi- 
tude of chrlftians was under the papal hierarchy, who ufed 
fo arbitrary and unlimited a power to determine what they 
pleated to be herefy, and then omni appellationc poflpojita fub- 

5 ^ jefting 

(*) fide Covflit. Frcderici, f. ff. (f ' Vide Lindivood de leereticis, caj>. limll- 
ter ver!/. rentenciet. 



390 HiJJoria Placitorum Corona. 

jefting mens lives to their fentence. (^) 2. How finely they 
made the ieciilar power their vaflals in execution of this 
odious piece of drudgery, as it was managed and prailifed 
by them. 

I come now to a clofer confideration of herefy, and its 
punilhment according to the ufage received in England, and 
the laws relating thereunto, according to the method above 
propounded. 

I. I'herefore how the uiage and law obtaind concern- 
ing this matter in England before the time of Richard II. 

As the romilli religion was generally received here in Eng- 
land in this period, io the manner of proceeding touching 
herefy was much according to the papal decretals and conili- 
tutions, v^'hereof a large account is above given. 

The juriidi6lion, wherein herefy was proceeded againft, was 
at the common law of two kinds ; 1 . The convocation or a 
provincial lynod. 2. The diocefan or bilhop of the diocefe, 
where the herefy was publifhed, and the heretic relided. 

1. As to the former it is without queftion, that in a con- 
vocation of the clergy or provincial lynod they might and 
frequently did here in England proceed to the lentencing of 
heretics, and when convitled, left them to the fecular pow- 
er, \\diereupon the writ of Ke?'etico comburendo might ilTue, 
(thus it was done in the cafe of the apollate Jew, Bra^. de 
Corona, Lib. III. (d), and in the cafe of Samre (e), 2 H. 4. 
who was convi£l in the convocation of London,) and then the 
archbllhop, wdio was pr^fes concilii, pronounced the fentence, 
degraded the offender, if in orders, and lignified the con- 
-V iftion into chancery, whereupon the writ de luretico combu' 
rendo ilTued. 

2. As to the power of the bifhop or diocefan alone there 
hath been diverfity of opinions ; fome have thought, that the 
biihop of the diocefe might proceed againft herefy by eccleli- 

I alfical 

(*) Gc^fridiis Coloiiieujis anno 1254. refugio proficient e, danmatur, £5? fam- 

fpenklng of the Tcvcrity of the pope mis cmdditcr injicitur. See alfo MaT. 

and the emperor Frederic, (the author '■Parii, p. 429. 

ot the conlHtution afore-mentiond for {d) I.il.Wl. c^p. 9. fol.izi^. a. 

burning hcrcticsj fays, Eodcra die, quo (f) State J'r. Vol. VI. AppC7id. p. 2. 

qun acciijiitiis eft feu jufti, feu i/jjufle. Fox's AcJs end Mon. Vol.1, p. 58d'. Ry- 

MiUiui a'fpcllr.tioiiis, nullius deftr/itj?iis ',»cr'& Fxd. Vol, VIII. p.il'6. 



Hijloria Placitoriim Corona. 391 

aftical cenfures, but as to the lofs of life the convidlion ought 
to be at leaft in a provincial council, without which the heretic 
ought not to undergo death by the writ de keretico comburend^^ 
I . For that in the cafe mentiond by BraSion, Lib. III. de Co^ 
rona the couA^iftion of that hereiy, or rather apoftacy, where- 
upon the offender was burnt, was in the provincial council 
at Oxford, i. I'he writ de h^retico comburendo .'m the re^iller, 
and F. N. B. recites the conviftion to be in a provincial coun- 
cil, and according to it is the opinion of FitzJ^erhert, ibi' 
dem fol. 16 c). and the flatute of 2 H. 4. (hereafter men- 
tiond) giving power to the ordinary finally to fentence an 
heretic, lo that death ihould enfue thereupon, was novic jii' 
rijdi^lionis in hac parte mtroduB:.-c. Again, my lord Coke, i z 
Rep. p. ^6,^ -J. recites this to be the opinion of all the judges 
in 2 Mar. and in efreil agreed unto 43 Eli^. by Sir Jobft 
Popham, and others, 5 Rep. Cawdries cafe, p. z^, a. accordant, 
and Brooke feems to accord i Mar. Br. Hereby. 

On the other fide others have holden, that the diocefan alone 
by the canon law might convi61: of herefy, and that there- 
upon this writ may be illued : i . I'his is confonant to the 
old decretals, and likewife to the provincial conftitutions 
of Arundel, Courtney and others, that the diocefan alone 
without the affiftance of a provincial council might convi£t 
of herefy, and deliver over the oftender to the fecular 
power. 2. Again, the itatute of 2 H. 4. cap. i 5. recites 
and admits the power of the diocefan in this cai'e, but that 
by reafon of the offenders going from diocefe to diocefe, and 
refuling to appear before the ordinary, he was interrupted in 
his proceeding, and thereupon the flatute gives f irther reme- 
dy. 3. That accordingly it was praftifed in the time of 
queen Elizabeth, when all former ffatutes concerning herefy 
w^ere repeald, and the cafe flood as it was at common law. 
4. That it was accordingly refolved by Fleming, Tanjield, Wil^ 
Hams and Croke in 9 Jac. (f), when Legate was burnt for he- 
refy 5 and accordingly my lord Coke P. C. cap. 5. p. 40, feems 

to 

(,/) 12 Co. ReJ'. pa, 



392. Hijtoria Placitorum Cor on tie. 

to be of the fame opinion f^), and fo feems to retraft what 
he had before deliverd in his i 2 th report. 

I'his buiinefs will be farther coniiderd in the feqiiel of this 
chapter, for the prefent I IhaJl only lay thus much. 

1. That the diocefan, as to eccleliaftical cenfures, may 
doubtlefs proceed to fentence herefy. 

2. I think that at common law, and fo at this day, (all 
former ttatutes being now repeald by i Eliz^. cap. i.) if the 
diocefan convi£l a man of herefy, and either upon his refli- 
fal to abjure, or upon a relapfe decree him to be deliverd 
over to the fecular power, and this be fignified under the feal 
of the ordinary into the chancery, the king might thereupon 
by fpecial warrant command a writ de h^retico comburendo (h) 
to illue, tho this were a matter that lay in his difcretion to 
grant, fufpend, or refufe, as the cale might be circum- 
ftantiated. 

And what is here faid of the diocefan or bllhop of the 
diocefe is true alfo of the guardian of the fplritualties fede 
vacante, but till the ftatute of 2 H. 4. the vicar general, com- 
millary, or official of the diocefan had no cognizance, un- 
lefs by fpecial commillion as an inquilitor from the pope ; 
and Linwood gives the reafon de lureticis cap. Item quia turpis 
verb, ordinarii in gluffa^ Efi enim caufa hi^refis una de major ibus 
caufis^ qtu pertinent ad fobs epifcopos ; but the ftatutes of 2 H. 4. 
cap. 15. 2 H. '). cap. 7. while they were in force, gave the 
cognizance of herely, as well to the bifliop's commillary, as 
the bifliop. 

2 3. But 

(g) Lord Coke docs not intimate as if the firft only, which he fays may be ga- 

he was of this opinion, or had retraced thcred from the acl of 2 H. 4. 
what he had fAid in his 12th report, (/>; Whether this writ lay at common 

(and had been foiemniy rcfolved in law, or was introduced by the clergy 

Ca-rvdric's cafe^ j he fays indeed, that about the time of //t'/Vfj IV. hath been 

from the ftatute of 2 H. 4. may be ga- made matter of quellion : fee State Tr. 

tlicred this conclufion, that the diocefan Vol. II. /. [275.] if the common law 

hath jurifdiftion of herefy, and accord- gave fuch a writ, it will be difficult to 

ingly it was refolvcd in Legatc\ cafe, reconcile it with what our author fays a 

and^ that upon a convi£lion before the little below, that the ufual penalty was 

ordinary of herefy, the writ ^/c i'tirrcr/co confifcation and baniflimenr, and that 

comhitrciido doth lie ; this he mentions 5 R. 2. was the firrt temporal law againft 

as alfo rcfolved in Legate's cafe, as in herefy, which yet went not fo high as 

truth it was f but to this laft ref )lution death, but only to imprifonment and 

he doth not declare any aflent, for it is eccJefiaftical cenfure. 



Hifioria Placitoriim Cor once. 393 

3 . But yet I never find before the time of Richard II. 
that any man was put to death upon a bare conviclion of he- 
refy, tho after a relapfe, unlefs he were fentenced in a pro- 
vincial council : and the reafon feems to me to be this, when 
the oft'ender was convi£led of lierefy either thro pertinacity, 
or after a relapfe, and fo deliver'd over to the fecuhir power, 
the ecclefiaftical judge had done his bufinefs, and the refl 
that follows was to be the aft of the temporal or civil pow- 
er, who were never obliged nor thought themfelves obliged 
here in England to take away the life of a perfon upon fo 
llender an account, as the judgment of a Ungle bifhop (/), nor 
indeed, unlefs it were a fentence by the weighty body of a 
provincial council : vide BraSion, ubi fiipra. 

For as this kingdom was never obliged by the canons or 
decretals of popes or of provincial councils further, than they 
were admitted, fo neither were they bound by the imperial 
conffitutions of the emperor Frederic or others, who by their 
edifts infli6l death upon all perfons cenfured by the diocefan 
to be relapfed or contumacious heretics ; but herein they did 
as the laws and ufages of the kingdom, and their own pru- 
dence, and the circumftances of the cafe required or direfted. 

But yet I take it, that the convi6lion before the diocefan 
alone was a good convi6fion, and the party might thereupon 
be left to the fecular power, and fo burnt by a writ dc h^- 
retico comhurendo, if the king and his council thought fit, tho 
dc fa3o it was not at all, or at leaft not ufually lo done, till 
the time of Henry IV. unlefs the convi6lion and fentence 
were in a provincial council, for the reafon before given. 

Fit^herhn therefore was herein miftaken, and alfo when 
he faith, it was to ifTue only in cafe of relapfe ; for a relapfe 
could not be without conviflion, and if the party were 
thereby convifted of the herefy, whereof he was accuied, and 
perlifted in it till after fentence, and refilled to abjure, fuch 
a contumax or pertinax kcreticus might be proceeded againft 
as a relapfed heretic, and a writ de h-eretico comburendo might 
thereupon iffue, as it feems, for the writ in the regiifer being 
formed upon a relapfed heretic purfues the cafe as it iinds 

5 H it, 

0) f: Co. RrJ>. 5<y. 



394 Hiftoria Placitorum Corona. 



it, but is not exclufive of the other cafe of a contiTmacioiis 
heretic, that pcrlilfs therein before and after tlie fentence ; 
de quo vide fupra j vide accordant i Mar. Br. Herejy i. and 2 5 
U. 8. cap. 14. 

Touching the penalty of convifls of herefy here in Englvid, 
I find very rarely death infii£led ; before the reign of Ri- 
chard II. the ufual penalty was conrifcation, and ieizure of 
goods ; quod vide Claiif.>2oH. 3. w. 1 1. dorf. touching Ernald 
de Pere^ard, who was convict of lieref}', and his goods feized 
to the king's ufe ; the like, Claitf. 26 H. 5. m. i $. pro Stephana 
Peliter, and as to corporal punifliment of Inch convifts, it was 
ufually in antient time banilhment and iligmatizing, as ap- 
pears by Ralph de Diceto, jiib anno 1166. m the time oi Henry II. 
and Brompton H. 2. ful^ anno 1 1 59. (''), but their conviction 
was in a provincial council held at Oxon pricfente rege^ ^ pr<Z' 
fcntibus epifcopis. 

But quo jure the forfeiture of goods was then praftifed, is 
confiderable : vide Co. P. C. cap. 5. the forfeiture of goods was 
introduced by 2 H. 5. and that ftatute being repeald, ceafeth. 

And in the firfl: temporal law or pretended law (A) made 
againfl: fuch offenders, vi^. $ R. 2. cap. 5. where, upon certifi- 
cate by the prelates into the chancery, commiffions Ihall iffue 
to the ftieriffs to apprehend and imprifon the offender, it is 
only until they will juftify themfelves according to the law 
and reafon of holy church, fo that it feems the puniihment 
did not hitherto de faBo exceed imprifonment and ecclefiafti- 
cal cenfures ; and yet it feems that Srrinderby and others in 
the time of Richard 11. before the ftatute of 2 H. 4. were or- 
dered to be executed for herefy; vide Fox part i. p. ^^Cy 
618. but none by name appear to be executed, ibidem p. 659. 
but of this hereafter, (j^) 

As 

(*) See alfo Maf. Tnris, /. 105. annuld the fame, hath been from time to 

C^) Our author here calls it 2i pre- time kept from the print. izCo.Rep. 

tended laiv, and lord Coke calls it ay?//- /.J?. 

fifed aci, becaufe the commons never (f) It does not appear, that any were 

contented to it, for which realbn in the orderd to be executed for herefy in this 

next feffion of parliament it was annuld, reign, and as to Sromderly, \l\.x. Fox 

altho by the prelates means it hath been fays, he was declared an heretic, but 

continually printed, and the aft, which futferd no great harm during the life of 

* kin" 



Hi ft or i a Placitorum Corona. 399 

As touching the writ de keretico comburendo it was no writ 
of courfe, nor iffued by the chancellor, but by fpecial warrant 
from the king upon the certificate of the convi6lion and fen- 
tence made to the king under the feal of the archbilliop, if 
it were in a provincial council. 

And thus far what I find concerning herefy at common 
law before the time of Richard 11. 

II. As to the times of Richard II. Henry W. HemyV. and 
fo to 25 Henry VIII. 

The firft temporal law or pretended law againft heretics in 
this kingdom was 5 j^. 2. cap. 5. which did not go io high 
as death, but only to imprifonment and eccleiiaftical cenfure, 
as appears by the printed ftatute ; but this was in truth no 
a£l: of parliament, for the commons never affented ; and ac- 
cordingly Rot. Pari. 6 R. 2. n. 52. the fame is declared by 
the king and parliament, which, it is true, was never printed 
among the ftatutes, but is at large recited by Mr. Fox^ part i . 
p. ^76. and therefore we find no other punilhment during 
this king's time, but imprifonment and eccleiiaftical cenfures. 
But in the time of Henry IV. the power of the diocefan 
was enlarged, vi-z^. by the ftatute of 2 H. 4. cap. i 5. (/), Wie- 
the diocefan hath power given him to arreft and impri- 
fon perfons fuipeft of herefy, till purgation or abjuration, 
and hath alfo power to fine and imprifon perfons for thofe 
offenfes, and elf reat the fines ; and if a perfon be convi£l; of 
herefy before the diocefan and his commilTaries, and do re- 
fufe to abjure, or having abjured fall into relaple, fo that ac* 
cording to the canons he ought to be left to the fecular court, 
whereupon credence Ihall be given to the diocefan or his com- 
miftaries, then the ilieriff of the fame county lliall be perio- 
nally prefent at the preferring of the fame fentence, when 
required by the diocefan, and lliall receive the perfon ien- 
tenced, and cauie him before the people in an high place to 
be burnt. 



This 

king Richard II. and if he was burnt, (/) This flatute was afterwards re- 
it was not till after the ftatute of z H. 4. peald by 25 //. 8. ca^. 14. 
See Fdx\ A^s and Mou. /, tfso. 



39^ Hi [fori a Placitorum Corona. 

This ftatute gave in efteft the whole power to the dloce- 
fan, and upon this account William Sawtre (m) after fentence 
and degradation in the provincial fynod of London was burnt 
in the beginning of Hemy IV.'s uturpation ; the whole pro- 
cefs and hiftory whereof is deliverd by Mr. Fox in his a<£ls and 
monuments, pun i.p.6-]^, 6-j^. and yet it is oblervable, 
this was not done barely by the order of the diocefan (n), 
but a fpecial \^'rit de luretico comburendo iffued to the mayor 
and flieriffs of London to perform the fame, which writ is 
there mentiond -verbatim, and is the very fame, which is re- 
cited by F. N. B. fol. 269. and was the warrant for the burn- 
in ^i of William Sarvtre. 

Now touching this matter we are to obferve, that the 
parliament of 2 H. 4. began the 20th day of January in oBa' 
bis Hilarii, it continued till the 10 th o£ March following, 
William Sawtre, having the year before been convicled for 
herefy before the bilKop oi Norrpich, was upon the 2 2d and 
24th of Febr. 2 H. 4. (which was fitting the parliament) io 
the provincial council held in St. Paul's, London, convi£led 
and fentenced, as a relapfed heretic, and an heretic to 
be punillied ; this was done in the provincial council be- 
fore Thomas Arundel, archbilfiop of Canterbury, as appears by 
the a6ls of the regiftry of Canterbury coUefted by Mr. Fox, 
part I. p' ^73, 674, 675. upon the 26th of Febr. the 
writ de h^retico comburendo was formed and made by the ad- 
vice of the lords temporal in parliament, which writ bears 
tcfie 2 6 Febr. 1 H. 4. per ipfum regem isf concilium in parlia- 
mento, and is entred verbatim in the parliament-roll 2 H.. 4. 

I n. 29. 

(m) He was a parifli-prieft, firft of vifl without a writ, unlefs he was pre- 

St. Mcirgaret o^ Lynn in the county of fent at the pronouncing the fentence, fee 

j^orfolk, and afterwards of St. Syt/.'e's State Tr. Fol. W. Append, p. i. befides, 

ihurch In Sythe-lane, London^ and was as cur author obferves below, this a6l 

the firft, who appears to have been cxe- did not pals till after Saivtre was fen- 

cuted for formal hcrcfy in England. tenced, fo that how it can be faid, that 

(«) Nor Could it be fo done, becaufe It was upon account of this ad that 

he was not fentenced by virtue of the Saivtre was burnt, I know not, except it 

aft of 7f. 4. which extended only to con- be with regard to the encouragement 

x'iflions before the diocefan or his com- the clergy might take from the profpeft 

niifliry, whereas Saivtre wus conviilcd of it's paiTing for anticipating the cxor- 

before the convocation j and even on a cife of fuch a cruel i^^-o to them dcfira- 

conviftion bcl^re the diocefm the fbe- ble) power, 
riff had no rov.e.- to bu:n the party con- 



Hifloria Placitorum Coroucc. 397 



n. 2 9. and is the very fame with that in Fut^j. N. B. before 
mentiond, and agrees verbatim with it ; and upon this writ 
Sarptre was burnt, being firft folemnly degraded. 

This convi£lion, fentence, and wTit, the after the com- 
mencement of the parliament, was before the end of that par- 
liament, and confequently before the ftatute of 2 H. 4. cap. 

1 5. pafled, which pafTed not till the laft day of the parlia- 
ment, 7;/:^. I o Martii ; fo that at that time the offender could 
not be executed but by writ de hccretico comburendo, for the 
diocefan had not power by his own immediate warrant to 
command execution, till that pafled, which pafled not, till af- 
ter the definitive lentence. 

In this parliament there was a petition of the clergy a- 
gainfl: heretics, which was the foundation of the ftatute of 

2 H. 4. cap. I 5. and was granted by the king de confenfu mag- 
natum ^ aliorum procerum regni in prafenti parliamento exiflew 
tiuMy with fome additional claufes, which were alfo drawn up 
into the afl of z H. 4. cap. i 5. but in that anlvver no con- 
fent of the commons appears, and yet the a6l was drawn up, 
and proclaimed, and, as it is now printed, is recited to be at 
the petition of the prelates, clergy and commons of the realm 
in parliament, and the enabling claiife is by the king by the 
aflent of the fl:ates and other difcreet men of the realm be- 
ing ill the faid parliament : this is obferved by Mr. Fox in 
his ABs and Monuments, pan i. p-lT^' whereupon he con- 
cludes, that this was no adl of parliament, but an adl of the 
king and clergy like that of 5 R. 2. befbre-mentiond, which 
was declared void, becaufe the commons never affented, as 
is before obferv^ed. 

But the truth is, the commons did aflent to this a£l, tho 
their aflent be not exprefled in the parliament-roll as it is en- 
tred, as appears in the fpeech of the fpeaker of the commons 
to the king the laft day of the parliament, Rot. Pari 2 H. 4. 
«. 47. where they thank the king for the remedy he had or- 
dained in deftrudlion of the heretical do6lrine of the feils ; 
and befides in the fame parliament-roll, «. 81. " Inter peti- 
*' tiones communitatis. Item prient les communes, qe quant 
" afcun home ou feme, de qel eftate ou condition qil foit, 

5 I " foic 



598 Hifloria Placitorum Cor once. 



folc prlfe & imprifone per Lollardie, qe niaintenant foit 
mefn en refpons, et eit tiel judgement, come il ad defervy 
en example daiitres de tie! male fe61: per llgierment ceiTer 
lour malveys predications, & lour tenir al a foy chriftian. 
Ro.' le Roy le voet. 
It is true this was never drawn up into a diftin£l a(3:, for 
the proviiion by the ftatute of 2 H. 4. cap. i 5. had a full and 
cjffeclual proviiion for it ; but this petition of the commons 
\^'ith the kin^^'s afTent was the principal balis, upon which the 
ftatute of 2 H. 4. cap. i 5. was built, and the ftatute was drawn 
up upon both petitions, as well that of the commons, as that 
of the clergy both put together, as was ufual in thofe times, 
and fo warrants the recital of the preamble of the printed 
ftatute of 2 H. 4. of the petition both of the clergy and com- 
mons (^), and every man knows, that in the times of Hen- 
ry IV. and afterwards the true profeflbrs of the chriftian 
religion, (that yet for the fame were fentenced as heretics,) 
came under the reproachful title of Lollards. 

This ad! of 2 H. 4. doth not determine what is herefy or 
what not, but leaves it to the deciiion of the diocefan, which 
wild and unbounded jurifdidtion they had and ufed, till 2 5 
H. 8. this therefore was their power at common law, and the 
temporal judge or power was to give credence herein to their 
fentence, but yet the confequence thereof being but to be 
left to the fecular power, the fecular power might exercife 
his own difcretion, and grant a writ de furetico comburendo, if 
he were fatisfied of the juftice oi the fentence, or forbear 
the granting it, if he were not fatisfied, that the thing 
charged was a real herely, or that the ecclefiaftical judge had 
proceeded fairly in the cafe, (f) 

3 But 

(*) This petition of the commons a- ded, That the punifhment of heretics 

mounts to no more, than that the Lol- mult not be I'etaxed or tk'layed. Cofijlit. 

iards fhould be cald to an account and Innocl'V. cflj>. 14. and 52. Clcfpi. IV. 

punifhed according to their deferts, but Conftit. XIII. and " That all magiflratcs 

contains nothing in it, which can be a " under the penalty of excommunication 

warrant for fuch fevere penalties, as